Surface rights: what it means for landowners

Know more about the rights and obligations of landowners and mining companies in relation to surface rights, mining rights, and surface access
Surface rights: what it means for landowners

When you own land, minerals and other high-value resources are found in it. You may wonder “Do I own the mineral rights to my property in Canada?”. Canadian laws on mining and surface rights will answer your question.

What are surface rights?

Surface rights are – as its name suggests – your rights as a property-owner or a landowner of what is found above or on the surface of your land.

As a private landowner, this right provides that you may do everything – as long as it’s legal – with regards to your land and the resources found there such as trees or lumber, water, or gravel.

Mineral Rights

However, surface rights are not absolute and there are exceptions to this right. Under Canada’s laws, it does not include minerals rights. These minerals are publicly owned by the Crown through the federal or the provincial government.

Mineral rights, also called subsurface rights in Canada, covers other resources found on your land, such as:

  • coal
  • oil
  • natural gas
  • metals and ores

In a nutshell, surface rights are all your rights regarding your land other than mineral rights.

Surface Access

So, what happens when you find minerals, oil, or natural gas on your land?

It's important to know that mineral rights do not include surface access – this is granted only by the landowner or the property owner. A landowner’s surface right must not be confused with surface access.

While the Crown owns the minerals, oil, coal, or natural gas in your land, it may pass on its mineral rights – through a lease, grant, or permit – to a mining company that would want to explore, harvest, and process these resources.

These mining companies need consent to access your land by negotiating a surface lease with you.

At this point, you may want to consult with a mining lawyer to guide you through the other relevant laws. That lawyer can go over your rights in a surface lease and represent you during the negotiations.

Surface Lease

A surface lease between you and the mining company must include the following:

  • the length of the lease
  • the proposed exploration and development activities that will be carried on your land
  • the construction and maintenance of any buildings or structures
  • the reasonable compensation for the grant of surface access and other structures
  • or any other condition that is favorable to both parties

Mining rights can sometimes complement other rights granted under Canada’s legal system.

Watch this video for an actual case on mining rights:

Consult with a lawyer to learn more about mining rights in Canada. Landowners and mining companies in Toronto and Ottawa, for example, may reach out to a Lexpert-Ranked mining lawyer in Ontario.

What are the laws regarding surface rights in Canada?

Certain provinces in Canada have enacted their own laws protecting a landowner’s surface right. In other provinces, mining laws may also include provisions for these rights and the grant of surface leases.

Some of these provincial laws on surface and mining rights are:

How does a landowner’s surface right apply to the mining industry?

The exercise and relations between these rights and the mining industry are further explained in these provincial laws.

Grant of surface lease or mining lease

These provincial laws say that every mining or energy company must first obtain the landowner’s consent before they can legally enter the landowner’s property.

Before a mining or energy company can do that, they must first apply for a license, permit, or lease from the appropriate provincial government agency.

In Alberta, a mining or energy company must apply with the Alberta Energy Regulator. After being granted a license, the company can send a notice to the landowner to enter their land.

The landowner and the mining or energy company can then negotiate the terms of their surface lease. An entry fee must also be paid, which is separate from the compensation for the use of the private land.


Aside from the surface rights as an exemption to a mining right or a mining lease, the different provincial laws also provide for certain limitations.

For example, under B.C.’s Mineral Tenure Act, the right to entry granted to a holder of a mineral title does not include the right to enter:

  • the land occupied by a building or residential areas
  • the curtilage of a dwelling house
  • an orchard or land under cultivation

Boards or Tribunals

If disputes on surface leases or any other matters arise, the dispute resolution will be handled by a Board or a Tribunal.

Canadian provinces have established these Boards or Tribunals through the enactment of the above-mentioned provincial laws. To name a few of these Boards or Tribunals:

  • Ontario: Ontario Land Tribunal
  • British Columbia, and Manitoba: Surface Rights Board
  • Alberta: Land and Property Rights Tribunal

Some of the issues that these Boards or Tribunals can rule on are:

  • Right of Entry Orders: to allow the mining company’s entry on the private land, when the landowner objects to such entry
  • Compensation: the amount to be paid to the landowner for a mining company’s entry, occupation, and use of the private land
  • Damages: the amount to be paid by the mining company in case of any loss, negligence, or damage caused to the private land by the mining company
  • Recovery of Rental or Lease Payments: to resolve payment issues, i.e., if the mining company fails to pay the landowner on time
  • Compliance: to resolve any issue regarding any violation of the surface lease, i.e., disputes on mining company’s development activities in the private land
  • Abandonment, Restoration, or Rehabilitation: when the mining company has not followed the standard procedures during the abandonment, restoration, or rehabilitation of the private land

The decision or order of a Board or Tribunal may be challenged before a court within a specified time. However, there are only specific grounds for an appeal to be heard by the court. Hiring a lawyer is important when proceeding with an appeal.

Want to know more about surface rights in the mining industry? Consult with any of the Lexpert-Ranked mining lawyers in Canada.