Do You Know What You Own?
Mining and Surface Rights

The Mining Act R.S.O. 1990 defines mining rights as “the right to minerals on, in, or under the land.” Surface rights are “every right in land other than mining rights.” The act also provides equal right of access to the property if there are two different owners - mining and surface rights.

So what does this all mean to a landowner? Well, ask a group of landowners in the Bedford Township area, north of Kingston, Ontario who learned that they do not own the mining rights to their property. For the past year these landowners have been on a steep learning curve, learning about their rights as landowners in relationship to the Mining Act, and the implications of only owning the surface rights and not the mining rights to their property.

To fully understand the issue you need to look at the history of how mineral (mining) rights in Ontario have been handled and look at the legislation that governs mineral exploration in the province - the Mining Act. Over the past 300 years there have been different practices used in Ontario when dealing with mineral rights ownership. As a result, the ownership of surface and mining rights will vary from one parcel of land to the next across the province. Prior to May 6, 1913, any parcel of land granted as a patent by the Crown included mineral rights ownership and land patents granted after this date may or may not have included the mineral rights. Simply, what this means is if you bought Crown land, or the previous owner did after May 6, 1913, it is possible that you only own the properties’ surface rights and not necessarily the mining rights.

This appears to be the current situation the Bedford landowners find themselves in. Recently, a number of landowners in the Bedford area have found, after the fact, that their properties(1) have been staked. They have learned when a landowner does not hold the mining rights, the Mining Act permits anyone holding a prospector’s licence to stake a claim, allowing them the right to prospect, and the legal right to later convert their claim to a mining lease on the property.

Staking a claim involves entering(2) the property and establishing the corner posts and boundaries of the section of land being claimed. This includes marking the lines between claim posts and may involve the cutting of trees, blazing of trees, and/or the cutting of the underbrush along the boundary of the claim(3) Notification to the property owner (owner of the surface rights) for staking is not a requirement under the act. It isn’t until the claim holder wishes to do further exploration(4) work on the claim that there is a legal requirement for notification.

As a landowner, do you know if you own the mining rights to your property? A quick check of the Ministry of Mines and Northern Development (MNMD) Web site at http://www.mndm.gov.on.ca/mines/lands/claimap3/default_e.asp may provide you with some preliminary information. By navigating through the “Mining Lands CLAIMaps” section of this Web site, you will be able to locate your property and see if the Crown retains the mining rights. However, there are two important points to keep in mind! As the disclaimer on the site says, “material in this service involves a new use of technology, which may cause errors, and therefore the information may be inaccurate or incomplete.” It should also be noted that just because your property isn’t on the list, it may only mean that the Crown doesn’t own the mining rights. It is entirely possible that the previous owner may have sold the rights to someone else. As a result, the information on the MNMD Web site shouldn’t be used as gospel; it is only your first step in determining the status of the mining rights on your property.

To be sure, the ownership to the various rights for a particular parcel of land is a legal question that can only be determined through a title search at the local land registry office. You can undertake this task yourself, or you may want to consider seeking legal assistance. Ask your lawyer to undertake a title search of the property seeking details of the ownership of both the mineral and surface rights.

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Need More Information?

Looking for more information on the Mining Act? Here are a few places you may want to explore.

A copy of the Mining Act and Ontario Regulation 7/96, Claim Staking for the Mining Act can be viewed online at http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90m14_e.htm. Or, a copy of the act and regulation can be purchased from Publications Ontario by calling 1-800-668-9938.

Contact Roy Spooner, at the Provincial Mining Recorder Office in Sudbury at 1-888-415-9845 (ext. #5793) or by e-mail at <roy.spooner@ndm.gov.on.ca>.

Footnotes

(1) Section 32 of the act prohibits prospecting on that part of the property where there is a dwelling, cemetery, garden, orchard, vineyard, nursery, plantation, outhouse, church or crops that may be damaged through staking without the prior consent of the property owner.

It should be noted the term “plantation” under this exception might not include a reforested area. Precedence may have been established in 1988, when the Mining and Lands Commissioner concluded in Poprupa vs. Taylor, that the legislation was not intended to withdraw from staking those areas that have been reforested.

In addition, when MNDM were asked if woodlot improvements either approved under the Managed Forest Tax Incentive Program or done otherwise by the owner fall within the meaning of crops that may be damaged under Section 32 of the act, MNMD responded “the interpretation of various aspects of Section 32 is currently a matter of a dispute process before the Provincial Mining Recorder and since there are legal decisions pending, the ministry cannot comment at this time.”

(2) There are laws that prohibit trespass. However, these same laws also contain exemptions that effectively say anyone who has a legal right to enter a property is not trespassing. And, under the Mining Act the holder of a valid prospector’s licence has a legal right to go on land that is open for staking.

(3) Compensation is available to landowners if in the opinion of the Minister there has been damage (i.e. trees cut) as a result of the staking or any ground assessment work.

(4) A 24-hour notice (minimum requirement) to the property owner is required before exploration work can take place on private land. Exploration work may include surface stripping of an area less than 1 hectare in size or extraction of a volume less than 10,000 m3.

This article appeared in the Fall/Winter 2002 (Volume 29) edition of the S&W Report the newsletter of the Ontario Woodlot Association.

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