Comments on: Mutatis Mutandis: The ERCB speaks (in Latin) on the subject of carbon capture and storage http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/ Tue, 22 May 2012 09:53:02 +0000 http://wordpress.org/?v=2.3.3 By: Nigel Bankes http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-104937 Nigel Bankes Tue, 10 Aug 2010 20:12:17 +0000 http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-104937 Thanks Barry for this valuable comment and in particular for drawing my attention to the SC decision in Star Energy Weald. Other readers will also be interested in this decision and so for their benefit here is the link: http://www.bailii.org/uk/cases/UKSC/2010/35.pdf In answer to your question "how sure are we" I think that the answer is "not very sure at all" which is why I think it it is important to consider whether a jurisdiction such as Alberta should adopt one of the forms of declaratory legislation referred to above. I will try and add to this discussion when I have digested Star Energy Weald. Nigel Thanks Barry for this valuable comment and in particular for drawing my attention to the SC decision in Star Energy Weald. Other readers will also be interested in this decision and so for their benefit here is the link: http://www.bailii.org/uk/cases/UKSC/2010/35.pdf

In answer to your question “how sure are we” I think that the answer is “not very sure at all” which is why I think it it is important to consider whether a jurisdiction such as Alberta should adopt one of the forms of declaratory legislation referred to above.

I will try and add to this discussion when I have digested Star Energy Weald.

Nigel

]]> By: Barry Barton http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-104385 Barry Barton Thu, 05 Aug 2010 17:48:03 +0000 http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-104385 Nigel How sure are we about the assumption that the mineral owner controls the right to dispose of fluids in a formation? There is a case for saying that the surface owner has that right. The way I come to it is from the presumption that the rights of a surface owner extend downwards indefinitely - cuius est solum - and that mineral rights are an exception to or departure from those rights, but only as specified. So that makes me wonder about the basis of the "English rule". Little v Western Transfer and Storage Co was an interpretation of a grant of "all the said coal" held to be a grant of the stratum or strata in whcih the coal was imbedded. While there have been other such interpretations of words of grant, usually they depend on the presence of words showing the intention to convey a stratum or a "mine." So those cases are somewhat exceptional. Better founded, I think, is a line of cases from Pountney v Clayton (1883) 11 QBD 820 and Mitchell v Mosely [1914] 1 Ch 438. These cases emphasize that the surface means not merely the mere plane surface but all the land except the mines and mineral rights that may have been excepted. The surface includes the whole substratum to the centre of the earth including vacant spaces worked out by mineral lessees, subject to the rights of mineral owners. The Australian case Commissioner of Railways v Valuer-General [1974] AC 325 is sometimes cited for doubting the cuius est solum principle, but a close reading shows that the remarks on the matter were in answer to an argument that "land" must include the subsurface, when in truth it can readily be severed. And last week we have a new decision, from the UK Supreme Court, Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35. Directional drilling was held to be a trespass. The Court was unanimous on this point, with a strong reaffirmation of the cuius est solum principle downwards: "the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else." [27] The court was divided on the measure of damages; the majority held that, as it was controlled by a background of the legislation, compulsory acquisition principles applied and prevented the surface owner from claiming value that came only from the oil company's development or "scheme." Best wishes for an interesting discussion Barry Nigel
How sure are we about the assumption that the mineral owner controls the right to dispose of fluids in a formation? There is a case for saying that the surface owner has that right.
The way I come to it is from the presumption that the rights of a surface owner extend downwards indefinitely - cuius est solum - and that mineral rights are an exception to or departure from those rights, but only as specified. So that makes me wonder about the basis of the “English rule”. Little v Western Transfer and Storage Co was an interpretation of a grant of “all the said coal” held to be a grant of the stratum or strata in whcih the coal was imbedded. While there have been other such interpretations of words of grant, usually they depend on the presence of words showing the intention to convey a stratum or a “mine.” So those cases are somewhat exceptional.
Better founded, I think, is a line of cases from Pountney v Clayton (1883) 11 QBD 820 and Mitchell v Mosely [1914] 1 Ch 438. These cases emphasize that the surface means not merely the mere plane surface but all the land except the mines and mineral rights that may have been excepted. The surface includes the whole substratum to the centre of the earth including vacant spaces worked out by mineral lessees, subject to the rights of mineral owners. The Australian case Commissioner of Railways v Valuer-General [1974] AC 325 is sometimes cited for doubting the cuius est solum principle, but a close reading shows that the remarks on the matter were in answer to an argument that “land” must include the subsurface, when in truth it can readily be severed.
And last week we have a new decision, from the UK Supreme Court, Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35. Directional drilling was held to be a trespass. The Court was unanimous on this point, with a strong reaffirmation of the cuius est solum principle downwards: “the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else.” [27] The court was divided on the measure of damages; the majority held that, as it was controlled by a background of the legislation, compulsory acquisition principles applied and prevented the surface owner from claiming value that came only from the oil company’s development or “scheme.”
Best wishes for an interesting discussion
Barry

]]> By: Nigel http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-103665 Nigel Fri, 30 Jul 2010 18:43:32 +0000 http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-103665 Hi David, Thanks for the comment. I think that your response draws attention to the possibility that there will be lots of room to argue about pore space ownership for disposal purposes in split title situations in Alberta. As you will know there is legislation addressing this issue in the context of natural gas storage: see Mines and Minerals Act, RSA 2000, c. M-17, s.57 http://www.qp.alberta.ca/574.cfm?page=M17.cfm&leg_type=Acts&isbncln=9780779747597 but I don’t believe that this addresses storage\disposal of CO2 captured at a power plant and one of the problems with the section as it stands is that it likely only speaks prospectively. The question is: how, as a matter of public policy, should we deal with these uncertainties? Do we leave it to the Board and the Courts to resolve disputes on a case by case basis as we have done with phase gas and coal bed methane? Or should the legislature be more proactive as it was decades ago in dealing with sand and gravel? I favour the latter option using either British Columbia’s approach (see Petroleum and Natural Gas Act RSBC 1996, c.361, ss.128 – 129, or the approach taken in some Australian jurisdictions such as Queensland: see Greenhouse Gas Storage Act, 2009, http://www.legislation.qld.gov.au/Search/isysquery/7f1e0156-cab3-4318-ba74-b022b8406700/2/doc/GreenGasSA09.pdf#xml=http://www.legislation.qld.gov.au/Search/isysquery/7f1e0156-cab3-4318-ba74-b022b8406700/2/hilite/ ss. 27 – 28. Nigel Hi David,

Thanks for the comment. I think that your response draws attention to the possibility that there will be lots of room to argue about pore space ownership for disposal purposes in split title situations in Alberta. As you will know there is legislation addressing this issue in the context of natural gas storage: see Mines and Minerals Act, RSA 2000, c. M-17, s.57 http://www.qp.alberta.ca/574.cfm?page=M17.cfm&leg_type=Acts&isbncln=9780779747597 but I don’t believe that this addresses storage\disposal of CO2 captured at a power plant and one of the problems with the section as it stands is that it likely only speaks prospectively.

The question is: how, as a matter of public policy, should we deal with these uncertainties? Do we leave it to the Board and the Courts to resolve disputes on a case by case basis as we have done with phase gas and coal bed methane? Or should the legislature be more proactive as it was decades ago in dealing with sand and gravel? I favour the latter option using either British Columbia’s approach (see Petroleum and Natural Gas Act RSBC 1996, c.361, ss.128 – 129, or the approach taken in some Australian jurisdictions such as Queensland: see Greenhouse Gas Storage Act, 2009, http://www.legislation.qld.gov.au/Search/isysquery/7f1e0156-cab3-4318-ba74-b022b8406700/2/doc/GreenGasSA09.pdf#xml=http://www.legislation.qld.gov.au/Search/isysquery/7f1e0156-cab3-4318-ba74-b022b8406700/2/hilite/ ss. 27 – 28.

Nigel

]]> By: David Speirs http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-103385 David Speirs Tue, 27 Jul 2010 20:28:08 +0000 http://ablawg.ca/2010/07/27/mutatis-mutandis-the-ercb-speaks-in-latin-on-the-subject-of-carbon-capture-and-storage/#comment-103385 Nigel If, as per your assumption, the owner of the mineral rights owns the pore space in Alberta then, because in the vast majority of split title situations the owner of natural gas holds title to all mines and minerals except coal and petroleum or coal, petroleum and valuable stone whereas the owner of petroleum holds title to only the mineral petroleum, would it not follow that the owner of the mines would have the better claim to pore space? Nigel
If, as per your assumption, the owner of the mineral rights owns the pore space in Alberta then, because in the vast majority of split title situations the owner of natural gas holds title to all mines and minerals except coal and petroleum or coal, petroleum and valuable stone whereas the owner of petroleum holds title to only the mineral petroleum, would it not follow that the owner of the mines would have the better claim to pore space?

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