Thanks to an assiduous researcher with a serious personal interest in river gold, there are now very real questions to be asked on the matter of exactly what rights the Crown Estate does and does not hold in respect of leases to mine for ores in the UK.
There is evidence that this is not a legal question of which the Crown Estate Commissioners are unaware.
Brian Wright is a founding member of Gold Rivers Trust - which aims to make pure, unrefined Welsh gold jewellery for bespoke clients, with profits going to charitable ends.
According to the Birmingham Assay Office, he is the first panner to have any amount of fluvial gold officially assayed. This was just under 40 grams, assayed for its full mineralogical content.
His research into the rights known as the ‘Crown Prerogative’ – research which has yielded surprising results and which poses questions requiring to be answered – began when he asked himself: ‘Who owns river gold in the UK?
This question led to a second larger question: ‘Who owns naturally occuring gold and silver – and not just in the UK but in Australia and in former colonies where the Crown Estate Commissioners still claim rights to ‘Mines Royal’. (We raise the issue of the legality of overseas mining operations by the Crown Estate Commissioners to flag it up as a very interesting one – to which we will return; but it is not the subject of this current piece.)
What Brian Wright has uncovered, if correct – and to date there is no reason to think it is not – may also have some bearing on the basis of mining law in the USA, Canada and South Africa.
The heart of his argument rests on a series of three pieces of law – one from the mid-16th century which handed all gold and silver to the Crown, followed by a twinned pair of late 17th century acts which gave it all back again to the landowners. Neither of these paired acts has been repealed and only the first of them, for reasons that will become obvious, is regularly acknowledged by the Crown Estate Commissioners.
The legislative sequence
The Case of Mines 1568 and the Crown Prerogative
The Crown Prerogative to gold and silver originated in the Case of Mines 1568, in which the judges decided that the monarch had rights to the ‘ores’ from ‘mines’.
His personal interest led Brian Wright to question whether the Crown Prerogative had ever extended to fluvial gold. Could the loose gravels in a river ever be described as ’ores’? Commonsense geology dictates not and the Crown Estate Commissioners have never been required to seek a ruling. This therefore , for the moment, remains at the level of ‘opinion’.
The Case of Mines 1568, or Regina v Earl of Northumberland, saw twelve judges deciding authoritatively 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, with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore.’
This simply gave all rights to all the gold and silver ores in the country, regardless of land ownership – to the monarch. It cannot have done anything but cause rumbling dissent from the ripped off landowners. Their determination to keep what they owned caused legislative change - 120 years later – progressively reversing the outcome of The Case of Mines.
The Mines Royal Act 1688
‘What Mine not adjudged a Royal Mine.
‘Noe Mine of Copper Tin Iron or Lead shall hereafter be adjudged reputed or taken to be a Royall Mine although Gold or Silver may be extracted out of the same.’
This Act gave landowners the right to mine copper, tin, iron and lead mines, where an admixture of gold or silver is contained in the ores. Clearly, this means that, in law, gold and silver in admixtures with copper, tin, iron and lead have not been ‘Mines Royal’ since 1688.
This is the legal fact that is a facer for the Crown Estate Commissioners, one of which they are aware, which has brought changes to the text on their website but has not stopped them licensing mining for gold and silver and collecting fees.
While the 1688 Act simply binned the rights of the monarch known as the ‘Mines Royal’, the clarity of its intention in the matter of gold and silver came under dispute and so, a short five years later, in 1693, a second act came into being to establish - and indeed extend – the legislative intention with brutal lucidity. This next act binned the very notion of ‘Mines Royal’
The Mines Royal Act 1693
‘That all and every Person or Persons being Subjects of the Crowne of England Bodies Politick or Corporate that now are or hereafter shall be the Owner or Owners Proprietor or Proprietors of any Mine or Mines within the Kingdom of England Dominion of Wales or Towne of Berwick upon Tweed wherein any Ore now is or hereafter shall be discovered opened found or wrought and in which there is Copper Tin Iron or Lead shall and may hold and enjoy the same Mine or Mines and Ore and continue in the possession thereof and dig and work the said Mine or Mines or Ore notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royall Mine or Royall Mines any Law Usage or Custom to the contrary notwithstanding.’
Well – ‘notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royall Mine or Royall Mines any Law Usage or Custom to the contrary notwithstanding.’ - that was telling them. That was an indication of where the power had gone.
The dispute over the clarity of the intention of the 1688 Act led, among other things, to the reference to ’any Ore’, which one presumes would naturally be primarily inclusive iof gold or silver. It was no coincidence that the promoter of the 1693 Act was the mining landowner Sir Carbery Pryse - whose fight to prevent the crown declaring a very rich mine discovered on his land in 1690 to be a ‘Mine Royal’ – led to the 1693 Act and its proscription of ‘Mines Royal’.
(Sir Carbery was a knowing campaigner. He made sure to take as his partners in the development of the disputed mine some very powerful men like the Duke of Leeds – a move that saw the 1693 Act go through.
The astute Sir Carbery had such an adrenaline rush at this success that he set off at once to carry the news of the liberation to his mines at Esgair Hir in Wales. Changing horses as he went, he completed the ride, non-stop, in forty eight hours. Considering the roads of the day, this was an extraordinary feat. Had it been Argyll’s A83…
This 1693 Act originally carried a second section (S2) which conferred a pre-emptive right upon the Crown to buy ores at fixed prices. It may have been a concession at the time but this section, with the pre-emption, lasted for 278 years before being abolished by the Statute Law (Repeals) Act 1969 .
Mr Wright notes that the Crown Estate Commissioners make no mention of the 1693 Act or its reference to ’any Ore’. He sees this as a tacit admission that gold and silver ores are no longer ‘Mines Royal’ where some copper, tin, iron or lead is present – and do not wish to assist others to the same understanding. The Act makes no attempt to specify any relative percentages of gold and silver with copper, tin, iron or lead that might be used as qualifying conditions to be or not to be a ‘Mine Royal’, so the proscription of ‘Mines Royal’ is absolute. This is clearly not a position a revenue-driven organisation like the Crown Estate Commissioners could be expected to advertise against its own interests – and they do not.
After the Mines Royal Act of 1693, which has never been abolished or repealed, it is hard to see any foundation for arguing that ‘Mines Royal’ continue to exist. They cannot legally be claimed to be rights held within the portfolio that is the Crown Estate.
Shifting regal power and the retaking of the mines
Setting these various pieces of legislation in the political context of their time is quite instructive.
- The Case of Mines in 1568 came ten years after the accession to the throne of the acquisitive Elizabeth 1.
- The Mines Royal Act of 1668 came in the year of the Glorious Revolution when the Catholic King James II of England and VII of Scotland had been deposed and replaced by William of Orange and his wife Mary. The British monarchy had been weakened with the progression of the execution of Charles I; the rule of Oliver Cromwell, the Lord Protector; the restoration of the monarchy with Charles II; his deathbed conversion to Catholicism; the succession and departure for France three years later of his Catholic brother James II; and the arrival of a new royal line with the Prince of Orange. These were not the times for the powerful landowners to accept a mines grab by greedy monarchs.
- The Mines Royal Act of 1693 came in the reign of the Prince of Orange, invited in to Britain to rule as King William III. Its unequivocal assignment of the primary rights to mined ores to those who owned the land on which the mines were dug, underlined the rise of parliamentary power and the parallel decline of authority of the monarchy.
The position of the Crown Estate Commissioners
Mr Wright’s first problem is with what he describes as ‘blatant misinformation on the Crown Estate’s website’.
It says” ‘Gold and silver are Mines Royal, which in most cases belong to the Crown and are managed by The Crown Estate. The Crown Estate’s permission is needed to take away Crown gold in any form.
‘For more information on the history please visit our minerals page: history of Mines Royal.’
For a start – the laws that obtain, as demonstrated above, removed three hundred years ago the rights still claimed today by the Crown Estate Commissioners. What continues to happen in the legally questionable leasing of mines by the Commissioners could be described as fraud.
Then, beyond the issues with which Mr Wright is concerned, this information perpetuates the myth that the ‘Crown Estate’ belongs to the Crown. It does not. It belongs to the state and the revenues it generates go to the Exchequer.
It is simply a collection of rights and assets held in a state owned portfolio entitled ‘The Crown Estate’.
The Crown Estate Commissioners themselves, behave grandly in the influential and still feudal pockets of Britain, perpetuating for the unquestioning general public the myth that they are employed by the Queen.
The reality is, as they were sharply reminded in an appearance before a senior Westminster committee (Public Accounts), that they are ‘public servants , managing a public asset in the public interest’.
The bulk of gold and silver ores have always been mined in conjunction with copper, tin, iron, lead and other metal ores, in varying proportions- a situation recognised in the 1688 Mines Royal Act, assigning legal ownership of the ores to the landowner in question.
The promised ‘history’ page on the Crown Estate website had previously included a ‘fact‘ that the Crown Prerogative extended to all naturally occurring gold and silver.
Interestingly, this was withdrawn following Mr Wright’s recent enquiries of the Crown Estate Commissioners. The ‘history’ page was then updated, as follows – and remember that this is a diluted version of what the website had earlier declared..
‘History of Mines Royal
‘A prerogative right to mines has been exercised by the Crown for centuries. Along with gold and silver this did at one time include copper, iron, lead and tin, but was curtailed by a seventeenth century Act of Parliament. An Act of 1688 declared that no mine of copper, tin, iron or lead should be royal mine, although gold and silver could be extracted.
The revenues were administered by the Exchequer, but passed to the Auditors of Land Revenues and, in the early nineteenth century, the Commissioners of Woods, Forests and Land Revenues. Today, the prerogative rights to gold and silver are part of The Crown Estate. This is true for all of the UK although in the past, in some limited areas in Scotland, this right has been transferred from the Crown by ancient charter.
‘So it is that mines of gold and silver continue to be referred to as the ‘Mines Royal’.’
As we have seen in the evidence above of the measures enacted by the Mines Royal Acts of 16988 and 1693, this is a flagrant misrepresentation of the legal position. It could be said to be skating on perilously thin ice in the confident expectation that no one will know enough to dispute it; and that if they did, they would not care to challenge what they are wrongly led to believe is owned by the Queen. (Awfully bad form,old chap.)
We note that the opening paragraph neatly says that the prerogative has been ‘exercised by the Crown for centuries’. It does not say that the prerogative has been held for centuries.
We note too that it quotes the 1688 Mines Royal Act, thought at the time to be worded too vaguely to reflect its intentions and revised within 5 years, rather than the much less equivocal 1693 Mines Royal Act . This was frank about the political reality of the situation it legally enacted: ‘ …notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royall Mine or Royall Mines any Law Usage or Custom to the contrary notwithstanding.’
The pretences and claims envisaged in this three hundred year old Act are exactly what we are looking at today. Here , close to home in Argyll, Scotgold, the owners of the Cononish Mine at Tyndrum, have been and are paying the Crown Estate Commissioners on rights arguably abolished in the two late 17th century Mines Royal Acts referenced above – and on rights which they might easily and legally avoid.
The 1688 Mines Royal Act, which the Crown Estate Commissioners do recognise on the website as the governing legislation, immediately outlaws , for example, their actions in imposing Mines Royal duties and annual inspections on Parys Mountain copper mine in Anglesey in Wales.
Sleight of hand: The Crown Estate Act 1961
Paragraph 18 of the official notes to the Crown Estate Act 1961 belatedly interpreted the 1693 Act to suit the revenue generating focus of the Crown Estate Commission.
The text of the notes makes the retrospective recovery game clear. (The italics are ours to draw attention to the revisionism.)
’18. Mines Royal
‘By prerogative right, the Crown is entitled to all mines of gold and silver within the realm, whether the mine is situate within its own land or within land of a subject. Since 1688 the foregoing right does not extend to mines of copper, tin, iron or lead, which are not to be adjudged, taken or reputed to be royal mines even though gold or silver may be extracted from them (Royal Mines Act 1688, Section 3). And British subjects owning mines within England, Wales or the town of Berwick Upon Tweed in which any ore is or may be discovered, opened, found or wrought, and in which there is copper, tin, iron or lead, may hold, enjoy, and possess those mines and ore, and dig and work the same notwithstanding that they are claimed to be royal mines notwithstanding any law, usage or custom to the contrary (Royal Mines Act 1693, s.1). However the above provisions do not apply to mines worked primarily for gold, when the ore contains such a slight admixture of the baser metals as to be valueless in itself for the purpose of working. In the latter case, a licence from the Crown is necessary for working.‘
This begs the question as to the basis for the Crown Estate Commissioner’s claim that high grade gold and silver ores are ‘Mines Royal’, even if predominantly copper and other base ores are not?
In enquiring of the Crown Estate Commissioners as to the foundation for this assertion, Brian Wright says that no clear answer or comment has been forthcoming – except that the situation is complex and they cannot give legal advice. If they can give no definitive answer, the implication is that they are no longer entirely confident of the rights they claim and apply.
Almost the last word from Brian Wright
As we write, Mr Wright is off on an Easter prospecting break in Wales.
He provides some final pointers to what he has found and the questions he is asking. He also has advice both for the Crown Estate Commissioners and for clients of theirs who may be less than usefully aware of their legal position.
He says: ‘I have also pointed out that the Mines Royal Act 1688 abolished the Crown monopoly companies, which were set up to administer the Crown’s mineral interests. These companies were not very effective, having often faced resistance from local magistrates, many of the latter being land and mine owners.
‘The Society of Mines Royal was one of two mining monopoly companies incorporated by royal charter in 1568, the other being the Company of Mineral and Battery Works.
‘I suggest that the Crown Estate takes legal advice on the true meaning of the 1693 Act, in conjunction with the 1688 Act.
‘I have discussed my viewpoint with the operators of the three companies in Anglesey, Scotland and Northern Ireland which currently have leases of Mines Royal from the Crown Estate Commissioners.
‘The Parys Mountain copper mine has a small proportion of gold and silver in admixture with many other more abundant metal ores, so it cannot be a Mines Royal in any sense.
‘The Tyndrum and Cavanacaw mines may, for marketing purposes, principally be listed as gold mines. However, they also contain base metals ores, which, if worked to the smallest degree, would exempt them from being Mines Royal under the 1688 Act – whatever interpretation of the 1693 Act’s ‘any ore’ might be advanced.
The 19th century indicator for the Crown Estate Commissioners conduct today
In the 19th century – in 1862 – very rich seams of gold lodes were found at Clogau in Wales and subsequently in nearby mines in the Mawddach valley. Until then, gold and silver were always associated with dominant base minerals. The Crown Estate at that time will literally have traded on not being found out in levying licence fees of questionable legal validity.
It will have relied upon all-but-universal ignorance of the dusty old legislation, then almost 170 years old.
It is possible that at that time, at the height of the thrusting Empire, they could have simply passed new legislation, reinstating the Crown Prerogative (not the pre-emption) to gold and silver.
They chose to let the hare sit – the establishment’s routine option of first resort - and one history, to date, has proved very effective -from their perspective.
One would hope that today would be different. It may not be.
Scotland has witnessed the conundrum of its first nationalist government’s entire first term characterised by two economically conflictual stances.
On the one hand it has pursued a wholesale renewable energies development strategy majoring on marine renewables, in a situation where a major beneficiary is the Crown Estate Commission, which will see its revenues from sea bed licensing fees accelerate – driving up costs;.
On the other hand it has chosen not to exercise devolved powers it possessed from the outset, simply to change the ownership of the Scottish rights and assets held in the Crown Estate portfolio.
So although the position of the Crown Estate portfolio requires serious challenge in its crucial rights over the Scottish sea bed and in its exercise for profit of mining rights it is unlikely actually to own, we may not see those challenges issued. The hand of an instinctively feudal culture reaches still for the forelock, even in Scotland the Brave.
On Scottish ‘bandits’ and corporate environmental responsibility
Brian Wright says that there is a gold panning association based in Scotland but its members prefer to think of themselves as bandits, stealing the Queen’s gold. This is part of the attraction of the hobby for some,but it makes their campaigning position very weak.
The Crown Mineral Agents in reality have little interest in the small amounts of river gold which panners find in UK rivers. Many panners publish photos of their nuggets and jars of gold on online websites and discussion forums. None have been required to account to the Crown Estate, despite the fact that their website insists that gold panners must apply for a leisure panning licence. Brian Wright reported his findings, over three ounces in one year, and offered to pay duties, if the legal basis for the duties was explained. The lack of any answer for many months led to his research, and more searching questions.
Quite apart from huge mining costs, European eco laws present serious obstructions to the exploitation of deep underground veins. The Crown Estate Commissioners should not encourage this kind of gambling, which can lead to exploitation of gullible investors and damage to the environment, when things go wrong.
For instance, officials who manage the closed mine at Gwynfyndd regularly release huge amounts of toxic orange sludge into the Afon Mawddach, even when water levels are low. This has the potential to kill the entire fish stocks which have, perhaps not coincidently, been progressively decimated in the past 20 years. Why is this sludge not regularly extracted in small controlled amounts?
Call for official enquiries by Welsh Assembly and Scottish Parliament
On behalf of Gold Rivers Trust, Brian Wright is calling for an official inquiry into the real causes of environmental damage in the Mawddach. If the Crown Mineral Agents have in the past licensed gold mining operations which were not legally within their powers and were also ecologically unsafe, the Welsh Assembly should launch an inquiry.
It may be that in their persistence with the ‘Mines Royal’ licensing notion, the Crown Estate Commissioners are acting as little other than self-appointed wheel clampers.
We can see a surreal situation where businesses straining to pay as little as possible to the exchequer through extreme tax efficiency nevertheless continue to pay mining fees to the Crown Estate Commissioners, knowing that the legal basis for their imposition is insecure to say the least – just because they wouldn’t like to offend the Queen (who has nothing to do with it). And the mining fees levied upon them on a dubious legal premise – go straight to the exchequer.
For Argyll is calling for an official enquiry at the Scottish Parliament. The position in respect of ‘Mines Royal’ in law needs to be established authoritatively now, without fear or favour.
The photograph at the top of this article is of the entrance to the Cononish Gold Mine near Tyndrum, on the northern edge of the Loch Lomond and the Trossachs National Park. It is by copyright holder Helen Wilkinson and is reproduced here under the Creative Commons licence.