New Zealand, like many nations, has a long history of the state taking real property, often without compensation. In this two part series I examine one sub-set of takings, minerals from the sub-soil of privately held property (although the argument herein could apply with equal force to any state taking). Drawing from common law, the writings of jurists such as Blackstone and Locke and contemporary philosopher Ed Feser, I look at what circumstances, if any, might justify taking. I then apply this to the current practice in New Zealand and ask is the practice justified, does it meet the standard?
Drawing from Talmudic Law, the jurist Accursius of Bologna wrote the phrase cujus est solum, ejus est usque ad coelum et ad inferos (to whom belongs the soil it is his, even to heaven and to the middle of the earth) as a gloss on Justinian’s Digest. By the 16th century this maxim had become accepted common law doctrine for determining the extent of the rights enjoyed by a tenant in fee simple (“landowner”). The English Laws Act retrospectively declared that “so far as applicable to the circumstances of the Colony of New Zealand,” all statute and common laws of England became “part of the laws of New Zealand.”  This was confirmed by the Imperial Laws Application Act 1988. Since 1840 to the present day there have been few instances where the court has held that a statute or common law of England was not applicable to the circumstances of the colony of New Zealand. Hence, in the absence of statutes overriding it, the maxim is part of New Zealand law.
Historically the rights of the landowner included ownership of the minerals in the sub-soil. “The grant of the land includes the surface and … all that is infra, i.e. mines, earth, clay etc.” The sub-soil minerals were assumed to be conveyed along with the land, unless the conveyance instrument stipulated otherwise.
Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. … whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal …
Until the last century or so, the only minerals not subject to this doctrine were gold and silver. In The Case of Mines, the court held “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.” When it came to ownership of other minerals the court held,
That if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown.
Whilst gold and silver were the primary focus of the New Zealand government’s first legislative reservations of minerals, successive legislation incrementally added all the “base” minerals (and more) mentioned in The Case of Mines into state ownership.
Initially the state only claimed the minerals contained in state land and reserved the mineral rights on alienation of its own land. However, subsequent legislation saw all land subject to a retention clause on alienation that reserved, for the state, all minerals existing in their natural condition within that land. Today there are still pockets of minerals that remain in private ownership, as some land has not been alienated since the passage of the relevant legislation. However, these minerals cannot be petroleum, gold, silver, and uranium as these minerals belong to the state regardless of whether or not the land has been alienated. The state possesses an exclusive right to alienate (or grant a licence to alienate) the minerals it owns. In many circumstances, land owners cannot refuse consent for prospecting, exploration and mining to occur on their land.
This state of affairs, with respect to the ownership of minerals, has eroded the rights of the landowner as mineral ownership has changed without the consent of the original owner. Further, this change in ownership occurred without the owner being compensated. Prima facie, this change of ownership cannot be said to be compatible with property rights.
I. Property Rights
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”
It is important to understand this quote in context. Blackstone grounded the legal right to property in a moral right that exists antecedent to the state.
There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.
Blackstone appeals to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights. Locke argued that human beings have a series of rights antecedent to the existence of civil government. The state serves people by protecting and recognising these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land, subject to the proviso that one leaves “enough and as good … for others”
Edward Feser has suggested that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers cannot be unjust;
This, it seems to me, is a clear implication of the assumption … that external resources are initially unowned. Consider the following example. Suppose an individual A seeks to acquire some previously unowned resource R. For it to be the case that A commits an injustice in acquiring R, it would also have to be the case that there is some individual B (or perhaps a group of individuals) against whom A commits the injustice. But for B to have been wronged by A’s acquisition of R, B would have to have had a rightful claim over R, a right to R. By hypothesis, however, B did not have a right to R, because no one had a right to it—it was unowned, after all. So B was not wronged and could not have been. In fact, the very first person who could conceivably be wronged by anyone’s use of R would be, not B, but A himself, since A is the first one to own R. Such a wrong would in the nature of the case be an injustice in transfer—in unjustly taking from A what is rightfully his—not in initial acquisition. The same thing, by extension, will be true of all unowned resources: it is only after someone has initially acquired them that anyone could unjustly come to possess them, via unjust transfer. It is impossible, then, for there to be any injustices in initial acquisition.
If one mixes one’s labour with, and gains ownership of, previously unowned land then one acquires a property right to it, which in turn gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or that there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.
The moral property rights of the landowner are not absolute in the sense of never being able to be overridden. Although Blackstone suggests property rights are limited “only by the laws of the land”, he qualifies this in the very next paragraph,
So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
Blackstone suggests property rights can be overridden for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere he suggests that necessity might be a further option; a person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”
Ed Feser elaborates on the idea of necessity or “absolute distress”,
The most obvious implication is that individuals in circumstances of what Cronin calls “absolute distress” have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. Someone in circumstances like these is not guilty of theft or the like, because for actions like the ones in question to count as theft, etc., the cabin owner or flagpole owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question; and, according to natural law theory, no one could possibly have so absolute a property right. For the same reason, if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”
Necessity can be a justifiable but limited inroad into property rights. Feser argues that the necessity exception can extend to political situations,
It [necessity] is also what would justify the taxation required for the necessary functions of government (national defense, courts of law, etc.), since … the very existence of the community … depends on the state’s performance of these functions.
Feser also suggests that necessity might,
justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself.
Whilst the right may not be absolute, a prima facie property right exists. The burden falls on the expropriator to justify takings.
That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor!
In Can State Expropriation of Minerals be Justified? Part II, I will set out some of the purported justifications for expropriation of property, using the examples of petroleum, gold and silver. I will then analyse and critique these.
 Yehuda Abramovitch gives a fascinating history of the origins of the maxim in “The Maxim ‘Cujus Est Solum Ejus Usque Ad Caelum’ as Applied in Aviation” (1962) 8 McGill LJ 247.
 Bury v Pope (1586) 1 Cro Eliz 118; 78 ER 375.
 858 s1.
 David Williams “Gold, The Case of Mines (1568) and the Waitangi Tribunal” (2003) 7 Australian Journal of Legal History 157, 165.
 Mitchell v Mosley Cozens  1 Ch 438 at 450 (CA) Per Hardy MR.
 William Blackstone “Chapter 2: Of Real Property; And, First, of Corporeal Hereditaments” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 2, s 19.
 R v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 472] (Case of Mines). Upheld in Woolley v A-G (1877) 2 AC 163 (PC); A-G v Morgan  1 Ch 432.
 Case of Mines 510.
 Ibid 511.
 Gold Fields Act 1858.
 In 1991 all incremental legislation relating to the extraction of minerals was brought under Crown Minerals Act subject only to Ngai Tahu (Pounamu Vesting) Act 1997.
 Land Amendment Act 1913.
 For example, Land Act 1948 and Crown Minerals Act 1991 (“CMA”).
 CMA s10.
 Permits to prospect, explore and mine minerals are granted under ss23-29 of the CMA.
 Access to land is covered under ss49-80 of the CMA. A landowner might succeed at vetoing the exercise of a mining permit on his or her land (if it is not a mining permit for petroleum) but stands little success opposing the exercise of a permit to prospect or explore as the public interest grounds referred to in s66 of the CMA are very broad.
 William Blackstone “Chapter 1: Of The Absolute Rights Of Individuals” in Sharswood, above n 6, Vol 1, Bk 1, Ch 1, s 139. This is similar to the opening flourish of property as “sole and despotic dominion” in Blackstone’s chapter “Of Property in General” below n 18.
 William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
 John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
 Ibid s 27.
 Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) 22 Social Philosophy and Policy 56, 58-59.
 Although Blackstone describes property rights as absolute rights of people, it is clear from the context that by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean absolute in the sense of never being able to be overridden.
 Feser, above n 21.
 Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21, 43.
 Ibid 47.
 Feser, above n 21, 11.
Can State Expropriation of Minerals be Justified? Part II
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II