Ruling on Private Land in Ontario

Jamie Kneen

National Program Co-Lead

By Marilyn Crawford

The Mining and Lands Commissioner Tribunal has made it clear that regulations prioritize the interest of miners over the interest of property owners seeking to exercise their right before staking and prospecting can take place and to have areas exempt from mining claims.

As reported in the last MiningWatch Canada newsletter #13, the Provincial Mining Recorder refused to record a mining claim. The claim was staked in Olden district, about 150 kilometres west of Ottawa. The Application to Record, recorded in the name of Wollasco Minerals Inc., indicated that the property is pasture land with electrical fencing used for cattle. As there was no consent of the surface rights owner and there were crops, the lands were found not to be open to staking according to Section 32 of the Mining Act.

For surface rights owners, it appeared that there was a glimmer of hope that the Mining Act protected the rights and properties of cottage sites, residences and improvements from damage through the carrying on of prospecting or mining operations. It appeared that it would be a requirement to gain consent from property owners to include areas with improvements in a mining claim. All that changed after an appeal to the Mining and Lands Commissioner resulted in a decision which was handed down on Oct. 24, 2003.

The Commissioner agreed with the decision of the Provincial Recorder that the claim would not be recorded. However, the Commissioner ordered that the claim could be restaked without consent of the land owner and also outlined how to complete the staking so that it would be in substantial compliance with the staking regulations. The Commissioner determined that the multiple lands use of residence, farming and prospecting was compatible. It was considered unlikely that pasture land would be substantially damaged by staking and prospecting and compensation could be made. Tree cutting could take place and compensation could be made. Exploration work, including geochemical, geophysical and drilling, could be carried out with effort to minimize disruption of farming activities and noise that could be heard at the farm house.

At the hearing, Wollasco Minerals Inc. had argued how any company could proceed where the land owner would be able to prevent development by virtue of its forestry or farming operation. As if to support this argument, this additional order was made:

"In the event that a production decision is made, Wollasco will have the option of purchasing and Price has the obligation to sell the Price farm and all buildings and improvements."

The system of free entry allows gives unfettered access to lands open for staking. Paying $25.50 allows a prospector to stake claims for 5 years. There is no training, certification, regulating body or criminal record check required. Paying a fee of as little as 10 cents an acre, gives miners the right to enter, occupy and use private lands for mining purposes. Miners can share the surface of private land, intrude on the privacy and life style of land owners and interfere with their livelihood. They can strip, drill, blast and trench the surface. Mining is considered the best use of land and land owners can be obligated to sell. Compensation is supposed to represent a generous offer to land owners.

These practices are fundamentally wrong and, clearly, the Mining Act is in need of reform.