Understanding Mining Rights in Ontario

by Lara McGuire and Jonquille Pak of the Canary Research Institute. August, 2005.

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1.1 Crown Land: land that belongs to the province of Ontario. It does NOT include:

(a) land, the surface rights, mining rights or mining and surface rights of which are under lease or license of occupation from the Crown,

(b) land in the actual use or occupation of the Crown, the Crown in right of Canada, or of a department of the Government of Canada or a ministry of the Government of Ontario,

(c) land the use of which is withdrawn or set apart or appropriated for a public purpose, or

(d) land held by a ministry of the Government of Ontario.

1.2 Ground Assessment Work: is the process of investigating and searching for minerals in the land, including:

  • stripping of overburden;
  • bedrock trenching;
  • shaft sinking;
  • digging pits;
  • exploratory drilling;
  • re-cutting boundary claim lines once every five years;
  • dewatering of underground workings

1.3 Licensee: A person who holds a prospector’s license, issued under the Mining Act or a renewal thereof.

1.4 Mining Claim: A parcel of land, including land under water, that has been staked, and recorded by the

Provincial Mining Recorder.

1.5 Mining Operations: Any excavation or working of the ground to collect minerals.

1.6 Mining Recorder: An employee of the Ministry of Northern Development and Mines, appointed for a specific mining area who is the first contact when dealing with compliance with the Mining Act. Duties include: recording and filing mining claims and applications, issuing prospector’s licenses, hearing and deciding disputes.

1.7 Mining Rights are the rights to minerals located in, on or under the land. Also referred to as Mineral Rights.

1.8 Prospecting: the investigating of, or searching for, minerals (see ground assessment above).

1.9 Staking: the action of setting out of the boundaries of a mining claim by marking [blazing or flagging] lines and erecting and tagging posts with the objective of claiming the exclusive right to prospect and obtain priority to the mining privileges attached to the land.

1.10 Surface Rights: All those rights to land that are not mining rights. A person who owns surface rights is a person to whom the surface rights of land have been granted, sold, leased or located [s.79].

Mining Rights 1 Ontario Mining Act


2.1 What lands are open for staking and prospecting?

Overall, in Ontario, the holder of a prospector’s licence may stake out a mining claim on land that is open for staking and prospect for minerals on any Crown lands or on lands within which the minerals have been forfeited through the Mining Tax Act or were reserved to the Crown after May 6, 1913. The holder of a mining claim has the legislative right to obtain a mining lease, although surface rights provisions under the Ontario Mining Act control that activity and apply as work progresses.

Most Crown land can be staked out and prospected for minerals. Private property may also be staked as a mining claim when the mineral rights are controlled by the Crown. [s.27(b)]. Land can be bought without knowledge that the title is deeded for surface rights only. A mining claim is not registered on the title. Lawyers and real estate agents may be unaware that there is an active mining claim on the property that is being bought or sold. Landowners may be unaware that a claim has been staked on their property because they are not notified of the staking,

2.2 Where can I find out if I own the mineral rights?

Whether or not you own the mineral rights can be verified by a detailed title search at the appropriate Land Registry Office. The Provincial Mining Recorder or the website of Ministry of Mining and Northern Development can provide information on the status of a particular parcel of land.1

2.3 What’s the status of my land if I do not have the mineral rights?

If you do not own the mineral rights, the Crown or someone else may hold title to the mining rights. If the land you own or lease has not been staked, then your land may be open for staking.

2.4 What lands cannot be staked?

The Mining Act sets out a number of types of properties and areas which are NOT open – i.e. on which a mining claim cannot be staked out or recorded. These include:

  • town sites [29(a)]
  • registered residential subdivisions [29(b)]
  • summer resort locations identified by the Minister of the Ministry of Natural Resources, unless a
  • discovery of valuable minerals on the land has been made [s.30(1c)]
  • lands where mineral rights are not reserved to the Crown [s.30(1a)]
  • Provincial Parks, although some provisions are allowed within the Public Lands Act section 13(6)
  • [s.31]
  • land for public purpose owned by the Ministry of Transportation
  • pleasure grounds (not defined yet under law)
  • areas that are necessary for the occupation and utilisation (access) of buildings or improvements to

the land (such as buildings, waterworks and roads) that were erected prior to the staking of the land. [s.80(2)] It should be noted that these areas are open for staking and require a decision by the recorder or commissioner before they are excluded from the claim.

  • fire areas that are closed under the Forest Fires Prevention Act [s.42]
  • on parts of land that contain water flows capable of producing 150 horsepower [s.33(1)]
  • lands within 45 metres of a highway or road without the consent of the Minister.

2.5 What is the status of Indian Reserves?

Indian Reserves cannot be staked except as provided by the Indian Lands Act, 1924 [29(e)]. The Indian Lands Agreement Act (1986) provides that the Indian band of the said lands can enter into agreement with the government of Ontario and the Government of Canada over minerals, mineral rights and royalties, although the mineral rights are reserved to the Crown.

2.6 What is the status of Land that is occupied or being used?

A mining claim cannot be staked out nor can prospecting be done on the part of a lot where any of the following are situated, subject to the exemptions noted below:

  • house/residence/cottage/dwelling
  • church
  • cemetery
  • public building
  • spring
  • artificial reservoir
  • dam or waterworks
  • outhouse
  • manufactory
  • a garden, orchard, vineyard, nursery, plantation or pleasure ground or where crops can be damaged

If any of the above exist on your property, a licensee cannot:

1. enter,

2. prospect, or

3. stake

these areas without your consent. A licensee may stake out or prospect without your consent if s/he obtains an order by the Mining Recorder or Commissioner allowing him/her to do so [s.32(1)].

If a dispute arises about the parts of the land which cannot be prospected or staked, the Mining Recorder or Commissioner will determine the areas which cannot be prospected or staked [s.32(2)]. The holder of the mining claim or licensee then cannot enter the areas of the land found to be exempt from staking. Any areas exempt from staking are also exempt from a mining claim.

2.7 What are the rights of a claim staked on Agricultural Lands?

A mining claim staked out on agricultural land does not give the staker any right, title or interest in or to the surface rights. [s.39(2)] The original ruling of the Commissioner in Wollasco Minerals Inc. versus Ronald Price ordered that any assessment work or drilling activity must be conducted to minimize disruption of farming activity and noise that may be heard in the farmhouse. In the Amended order, however, this requirement was deleted.7

2.8 Can a mining operation obtain the Surface rights?

Surface rights may be sold or granted to a mining operation if the surface rights are necessary for the carrying out of mining operations. The Minister will determine the scope of the surface right so granted. [s.39(2)].

If the lessee or owner of mining rights or the holder of a mining licence of occupation requires the use of surface rights within or outside the limits of lands covered by the lease, patent or licence of occupation for the mining rights, the Minister may lease to that person any available surface rights for the purpose of mining or mining exploration. [s.84(1)]

The Commissioner may make an order that gives an owner of a mining claim a variety of rights. Some examples include the right to construct ditches, insert pipes, discharge water, divert the flow of water of a river, pass through or over land or water, and to construct roads. [s.175(1)]

These types of rights will only be granted if they are reasonable in the circumstances and the damage caused to any other person’s property can be sufficiently compensated. [s.175(2)] After making an order, the Commissioner can change or revoke his/her decision. This can only be done for good cause. [s.175(13)] In the case of Wollasco Minerals Inc. v Ronald Price, the Commissioner issued an amended order because the previous order contained terms and conditions that were outside the ambit of the appeal and beyond the subject matter for which both parties had notice. [File No. MA 004-03 Feb 23 2005]

2.9 Can a surface rights holder be obligated to sell his/her property?

Initially, the Commissioner held in Wollasco Minerals Inc. v Ronald Price [File No. MA 004-03, Oct. 2003] that if the holder of the mining claim makes a production decision, the mining company has the option to purchase the property at 200% of its fair market value (as averaged by two appraisals), and the surface rights holder has the obligation to sell the property. Because it was outside of the ambit of the appeal, this order was rescinded in February 2005.

2.10 What surface rights are reserved to the Crown?

Surface rights may be reserved to the Crown on land (owned by the Crown- not privately owned) that is:

  • within 120 metres of land bordering on water [s.40(1)]
  • within 90 metres of both sides of a road or highway [s.40(2)]

This applies to all unpatented mining claims unless waived by the Crown. [s.40(3)]. The Crown may also reserve surface rights for the establishment or extension of town-sites on an unpatented mining claim [s.55(1)].

2.11 What rights does the holder of an Unpatented Mining Claim have?

Subject to the statutory and common law rights of the surface owner, the holder of an unpatented mining claim has the right prior to any subsequent right to the use of the surface rights for prospecting and efficient exploration, development and operation of the mines, minerals and mining rights [s.51(1)]. This is a broad right that permits entry onto privately owned lands and virtually any kind of activity necessary for mineral exploration, development and extraction.

The holder can consent to the disposition of surface rights under the Public Lands Act and the surface rights may be dealt with as provided in that Act [s. 51(2)]. The Minister may require a survey of the surface rights which will be provided at the expense of the person who has acquired the surface rights…