Welcome back! As promised, lets look at a few relevant hypotheticals:
Example 1: Joe owns a quarter section of land, but the provincial government has title to the minerals below. A company (“OilCo”) may apply to the government for the right to acquire those minerals, and would likely need access to Joe’s land. First, OilCo will attempt to get consent from Joe to occupy the land. If Joe gives consent, he is entitled to an entry fee for OilCo coming onto his land .
However, if Joe refuses to give consent and doesn’t want OilCo on his land, OilCo can apply for a right of entry order . The granting of that order allows OilCo to enter the land and excavate minerals as necessary. Joe would still be entitled to an entry fee, along with compensation for loss of land use, damage to land, and other adverse effects to the owner or his property (including livestock, and other personal property).
In short – even without Joe’s consent, an operator can come onto his land and extract resources.
Example 2: Jane owns a quarter section of land and has title to the natural gas beneath the surface, but CPR has title to the oil. OilCo can obtain a lease from CPR to acquire the oil, and must enter Jane’s land to do so. The same issues arise as discussed above, with one additional concern - while OilCo is recovering their substance, some of Jane’s natural gas may necessarily escape in the process. Historically, there is no right to compensation for the loss of another person’s substance; but the court has recently anticipated the necessity of compensation, but no calculation or standard has been provided .
As you can see, where the Magna Carta prevented the King from taking valuable resources from private lands, the Crown’s ability to take minerals is now also affected and limited by legislation. In addition, where land is directly or indirectly expropriated by the government, the title to the minerals below the land is not included in that expropriation unless expressly stated . Legislation like the Land Titles Act prevents the government from directly seizing mineral rights from owners.
It may be argued that giving “OilCo” the ability to enter onto land without consent of the owner, equates to an expropriation of the area of land where OilCo will be operating. Unlike expropriation by government, the occupation by OilCo is (typically) temporary, does not result in a change of ownership/title, and does not remove all valuable uses from the land.
Do landowners ever truly have full autonomy over their property? And if not, are the limiting circumstances justifiable for the greater good?
Let us know what you think in the comments below, or send us a tweet at @msmagnacarta !
 Surface Rights Act, RSA 2000, c S-24 s 19(1)
 Surface Rights Act, RSA 2000, c S-24 s 15(1)
 Alberta Energy Co v Goodwell Petroleum Corp, 2003 ABCA 277
 Expropriation Act, RSA 2000, c E-13 s 4