Can State Appropriation of Minerals in Privately Held Land be Justified? Resources Needed
I am currently undertaking my second-to-last paper in pursuit of my Bachelor of Law (LLB). Due to a complicated bunch of factors involving the potential staleness of my papers if I do not apply to the New Zealand Council of Legal Education for a completion certificate with an LLB and a Professional Legal Studies certificate in hand prior to 31 Dec 2010, combined with limitations of my ability to do much more than one paper at the time due to my neck injury and chronic pain issues and due to the fact that with only two papers to go I need to submit three opinion papers (only one of which can be substituted with voluntary community legal service), I had little choice but to choose a summer school paper that had the option of an opinion credit. This set of circumstances has seen me engaged in the project for which I now hope some of our readers can help me with.
My paper is Mining and Natural Resource Law (there is not much choice at Summer School). As an opinion topic we were allowed to take our budding legal specialty and apply it to any of the topics on the course outline. I like to take a philosophical rights and freedoms approach to most of what I research and write within the field of law so I have submitted and had approved a topic with a bit of a jurisprudential twist. I intend to analyse the justifications given for the state appropriation of minerals in the sub-soil of privately owned property.
Most articles I have found on this so far seem to tacitly assume that if the state has legislated that it owns the minerals in the sub-soil of privately owned land then the state’s action is justified or the author simply does not question this, even if he or she acknowledges that a few private property owners had an issue with this at the time, which is not helpful as I intend to question the justification.
New Zealand philosophical writings from the perspective of classical liberal/pro-property rights/limited state angles are fairly difficult to find. Further international writings on this subject are not commonly cited so they too are hard to find. If any of our readers can point me to any good sources that might help me in the project or even if you can just leave your thoughts in the comments section (if I use your ideas in the work I promise to attribute them back to you) that would be most helpful.
The following is the gist of the direction I hope to take.
Since at least the 16th century, the maxim cuius est solum eius est usque ad coelum et ad inferos (Latin for for whoever owns the soil, it is theirs up to heaven and down to hell) meant that at common law, generally speaking, minerals in the sub-soil of land belonged to land owner. Such minerals were assumed to be conveyed along with the land on its change of ownership unless wording in the conveyance instrument specified otherwise. Until fairly recently, the last century or so, the only minerals not subject to this rule were gold and silver; the Case of Mines found “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative”. According to Dr Robyn Anderson,[1]
The Court of Exchequer found in Case of Mines, that base metals – tin, lead, iron, copper, and non-precious minerals – belonged to the owner of the soil, but that the right to gold, silver, and their ores and admixtures, lay with the Crown. That right was not an incident of ownership of the soil, but rather, an attribute of the monarchy. The Elizabethan assertion of the prerogative reflected the pragmatic needs of the developing English state to control the coinage, and finance an army … [1]
The argument that back in the 16th century the Monarch needed to be able to protect the realm by using coinage to raise an army and weapons to arm it seems, prima facie, a reasonable justification for the state appropriation of gold and silver. However, in the last century or so many of the base metals and minerals deemed non-precious in the Case of Mines are now included in statutory reservations to the crown.
This has reached the point in 2010 where, with few exceptions, the state currently owns almost all minerals in territorial New Zealand and has exclusive right to alienate (or grant a licence to alienate) most of those minerals from even those lands held in private ownership. Further, in many circumstances, land owners cannot even refuse consent for prospective, exploration and mining to occur on their land.
The New Zealand government owns all naturally occurring petroleum (including both oil and gas), radioactive minerals, and gold and silver in New Zealand. Any individual or company wanting to prospect, explore or mine these substances must obtain a permit under the Crown Minerals Act 1991 and pay the specified fees and royalties [to the state]. The same rules apply to coal and all other metallic and non-metallic minerals and aggregates on Crown-owned land.
Mining of minerals and aggregates other than petroleum, radioactive minerals and gold and silver on privately owned land requires the consent of the landowner together with resource consents from local authorities granted under provisions of the Resource Management Act. [2]
Prima facie this seems to me to be a violation of ad coelum et ad inferos (the right of land ownership “down to hell” or in sub-soil) so the question I want to ask in my opinion, what is the basis for the state’s appropriation of sub-soil minerals from the lands of private property owners and is it justified? The New Zealand army is not armed with gold and silver these days, I can’t see any legitimate argument for why the state needs to own petroleum and “Nuclear Free New Zealand” does not have a nuclear weapons program (and are, just a guess here, highly unlikely to in the future) so what is with the state ownership of radioactive resources?
Obviously 3,000 words will not give me a lot of space to develop this topic so I will try to keep the topic to more of a general overview but I need resources and fast both directly on this topic and on property rights generally so if you have any thoughts…
[1] Robyn Anderson Goldmining: Policy, Legislation, and Administration (Rangahaua Whanui Report, Waitangi Tribunal, Dec 1996) RANGAHAUA Whanui NATIONAL Theme N: GOLDMINING: Policy, Legislation, and Administration (Robyn Anderson ed., 1996) 1.
[2] Simon Nathan “Mining and underground resources – Mining regulation and education” Te Ara – the Encyclopedia of New Zealand, updated 2-Mar-09.
In: Contributors, political, theology
