Other countries have gone farther in retroactive measures in regard to alienated lands. Under the leadership of France, most of the countries of western Europe have appropriated to their governments the undiscovered mineral resources on private ground, particularly those beneath the surface, except where previously they had been specifically conveyed to the private owners, or with the exception of certain designated areas and minerals which had been conveyed to private ownership prior to certain dates. Some minerals occurring at the surface, variously specified and defined in different countries, are allowed to remain with the private owners, although often subject to government regulation in regard to their development and use.
In varying degree this treatment of mineral resources on alienated lands is followed in the British colonial laws—in South Africa, Australia, New Zealand, and Canada—and in the Latin-American laws. The laws are usually based on specified classifications of minerals. Those occurring at or near the surface, and called "quarries," "placer deposits," "non-mines," or "surface deposits," usually remain with the surface owners. Those beneath the surface, called "sub-surface deposits" or "mines," in general belong to the government. In some of the countries of South America the state exercises eminent domain even over the surface deposits; and in others even sub-surface minerals remain in private ownership, where specifically granted, or where the transfer of property took place prior to certain dates.
Where the government has acquired mineral ownership of lands previously alienated, the resources are open for development either by the owners of the surface or by others, on a rental, lease, specific tax, labor, or concession basis. The government holds the title, exacts tribute, and more or less directs and controls the operation. Exceptionally, as in Ontario, British Columbia, Quebec, and Newfoundland, the government grants patents, that is, it disposes of its rights to purchasers.
On the Public Domain
Where the development of mineral resources began before the lands had passed from governmental ownership, special mining laws were enacted. Looked at broadly, these laws may be regarded as based on two partly conflicting considerations.
(1) The assumption that mineral resources, which are wasting assets, accumulated through long geologic periods, are peculiarly public property,—not to be allowed to go into private ownership, but to be treated as a heritage for the people as a whole and to be transferred to posterity in the best possible condition. Some of the early minerals to be developed were used either for money or for war purposes, leading naturally to the acceptance of the idea that these belonged to the government or to the sovereign.
(2) The assumption that the discovery and development of mineral resources requires a free field for individual initiative, and that the fewest possible obstacles are to be put in the way of private ownership. Governments have not as a rule been greatly interested nor particularly successful in exploration. Therefore, in framing laws of ownership, concessions have been made to encourage private initiative in exploration and development. In the case of the United States this idea was coupled with the broad doctrine that the government held public lands only in the interest of the people, and that its people were entitled to secure these lands for private ownership with the least possible restriction.
A survey of the mining laws affecting the public domain or non-alienated lands of different parts of the world, as well as the history of changes in the mining laws, indicates a wide range of relative emphasis on these two underlying considerations. In the United States, at one extreme, the laws have been such as to give the maximum possible freedom to private initiative, and to allow easy acquirement of mineral resources from the government. At the other extreme, in South Africa, Australia, and South America, it is impossible for the individual to secure title in fee simple from the government; he must develop the mineral resources on what amounts to a lease or rental basis, the ownership remaining in the government.
The trend of events in mineral laws is toward the latter procedure. This is evidenced in the United States by the withdrawal of large areas of public lands from entry, and by the recent enactment substituting leasing privileges for specified minerals for the outright ownership which was allowed under the federal law before the lands were withdrawn from entry. The withdrawal of oil lands from public entry in other parts of the world is another illustration (see pp. 131-132).