Jim D. asks:
in what countries and legal traditions does the government officially
own land and/or subterranean mineral rights and only lease them to the
users?
{I don't pretend real knowledge here. I hope others on the list know a lot
more.}
AFAIK, these days it is mostly hard to give sweeping examples where the
principle of public (govt) ownership of mineral wealth is universally
applied or universally excluded. Obviously there are the remaining
socialist countries, but after that public substrate ownership is limited
to specific products (e.g. petroleum) or categories of ownership history
(public land, formerly public land, etc). In the 3rd world today formal
private ownership of mineral rights may be permitted, but exploitation and
export rights do not automatically follow (subject now to "free trade
agreements") and these require special govt agreement and the negotiation
of fees.
1) I believe that for most countries outside the US, the formal
ownership of hydrocarbon resources remains in public hands. (sorry I can't
find my citation for this) (Naturally, in the US only offshore fields are
formally government owned.) Of course in many counties outside the
developing world this is rendered into only a formal ownership through long
term leasing arrangements or production sharing agreements. But in the
developing world, government ownership AND control of these fields is still
the norm since the 1960's/early 70's. It has been the largest remaining
holdout to neo-liberalism and their biggest single target by far (yea, target).
Antiquities and fossils are usually also excluded from private land
ownership rights. And there is the special case of offshore and the Law of
the Sea.
In the past, a few countries had blanket laws giving the government formal
ownership for a few other key export commodities (such as diamonds, IIRC)
and a number of African and other developing countries had blanket laws for
*unexplored* mineral wealth in certain categories. I imagine most of these
laws are now abolished under strong IMF/WB pressure. The struggles fall
back on the issues of nationalization of operations, the use of publicly
owned land (often very extensive, such as in Latin America) and over the
licensing/tax requirements for the exploitation of newly discovered mineral
wealth.
2) It should not surprise progressives that institutional factors like
history and politics wind up creating what does exist in most countries: a
patchwork of legal arrangements:
a) In the initial era of the privatization/commodification of land,
the reaction against feudal arrangements meant that mineral rights could
not be separated from land rights, and the courts refused to recognize any
separate sale of the two. So the govt. could not retain mineral rights in
the increasingly privatized land.
The principle of the unity of property or the integrity of the commodity
was sacred. To some extent it also felt that recognizing a separation
between land and substrate ownership might also utimately lead to a
violation of the "sanctity" of the right of an owner to dispose of his
property in the way he saw fit. In Europe, this remained the law in
Germany until around WWI, in Italy until around WWII, etc. I am guessing
that in the the U.S. the law evolved in the mid-1800s.
http://www.law.gmu.edu/faculty/papers/docs/05-38.pdf
In "the colonies", land that was privatized before the mid 1800s was
usually handled on the basis of unitary surface/substrate law.
b) Then came the staggering advance of refined forms of property
commodification (by 1916 in NY City you could sell both substrate AND air
rights). Contradictorily, this opened up space for govt ownership of
mineral rights on private land by BOTH "progressive" politicians in the US
and "statist" politicians in Europe and Japan. Land that was government or
crown owned and privatized after this change became subject to enormous
political struggles over the substrate rights. This also played an
important role in colonial policy and the shift away from privately owned
colonies (Belgian Congo, East India Company, Bismark's SW Africa Company,
etc) as well as the mines won by Chile in the War of the Pacific.
c) The early struggles in the U.S. are relevant to many other
countries, IMO. In the U.S. there are the well known examples of
"progressive" Presidents making use of this new space to give us the
today's patchwork in the West: Lincoln (insisting on retaining the mineral
rights in the large blocs given to the railroad companies as incentives
(1862, 1864); T. Roosevelt (such as retaining mineral rights in parts of
Oklahoma, as a condition of statehood); or Wilson (for the huge swaths of
western lands affected by Homestead law of 1916 that is now such a cause
celebre in the Rocky Mtn West). As a result in large parts of the West,
the govt owns the mineral rights to what has "always" been thought of as
private land. Since the BLM started leasing these rights new impetus is
given to the "property rights" movement who invoke the early capitalist
principles of non-divisibility and "my property/my castle".Of course the
counterpart was also the notorious giveaways by President McKinley etc.
One can't help thinking that the dispute over this shifting control of
substrate rights in the US west has contributed to the early aggressive
political role that oil and minerals producers played and continue to play
in U.S. politics (in contrast, say with the less politically active role
mine owners played in the UK, France or Germany where most mine land was
privatized under unitary property law concepts).
Paul
