Real Talk!

The Ontario Real Estate Board has been actively investigating, among many other issues, the growing concern of property owners in the Province over infringements of their property rights by mineral and mining prospectors under the OMA.

Mining rights are the rights to minerals located in, on or under the land. Surface Rights refer to any rights of the land that are not mining rights. You can look at this stuff online www.mndm.gov.on.ca/MNDM/MINES/LANDS/bulbrd/surface_rights/mrvssr_e.asp or by calling 1-800-667-1940. Please note: I highly recommend that the information provided on the maps and links to that site are to be used as guide (the information may be out of date) and that you should seek professional advice with regard to a specific property. The site itself warns: “Ownership of the various rights in land is a legal question that can only be determined through a “title search,” which usually commences at the appropriate Registry Office.”

Another interesting bit of information has to do with: File No. MA 013-98 as it is published at publicdocs.mnr.gov.on.ca

“L. Kamerman
Mining and Lands Commissioner
Monday, the 1st day of March, 1999.
THE MINING ACT
IN THE MATTER OF
Mining Lands Patents KRL-13521 to 13526, both inclusive, 14115 to 14127, both inclusive, 14109,
14110, 14534 to 14543, both inclusive and 15908, located on Parcels 5976 and 5977, respectively,
in the District of Kenora (Patricia Mining Division) comprising surveyed Mining Claims KRL-19096,
19097, 19107 to 19112, both inclusive, 29054, 29055, 29059 to 29076, both inclusive, 30055 to
30058, both inclusive, 31823 to 31832, both inclusive and 33200, situate in the District of Kenora
(Patricia Mining Division) hereinafter referred to as the "Mining Lands";
AND IN THE MATTER OF
An application under section 79 of the Mining Act in respect of the surface rights located on Werner
Lake Property (hereinafter referred to as the "Surface Rights").
B E T W E E N:
WERNER LAKE DEVELOPMENTS LTD. AND ROBERT W. HOPLEY
Applicants
- and -
AEC WEST LTD.
AQUAFOR BEECH LIMITED
Respondents
(Amended November 25, 1998) “

You really need to check out:
www.environmentprobe.org

here, they talk about:

“The growth-rate of a tree slows as it reaches maturity until it no longer uses the full growth potential of the land it stands on. When this occurs the tree should be cut, since it is preventing the realization of the full growth potential of the site.
Ontario Department of Lands and Forests, 1967(1)
We agree with the [Ontario government's] Green Paper that land should not be allowed to lie idle.
The Prospectors and Developers Association of Canada, 1989(2) “

Have I got your attention?

How about this one:

http://publicdocs.mnr.gov.on.ca/View.asp?Document_ID=11347&Attachment_ID=21836

“INTRODUCTION
A lawyer without history or literature is a mechanic, a mere working mason;
if he possesses some knowledge of these, he may venture to call himself an architect.
Sir Walter Scott, Guy Mannering, ch. 37, 1815
In 1992, when I was first appointed as Mining and Lands Commissioner, there was no single publication in existence which provided any sort of overview to explain the current nature of this old and important function. Even tracking down the actual jurisdiction for me or anyone wishing to deal with the Office was a challenge, with responsibilities found not only in statute and regulation but even in an Order in Council, something which was not readily accessible or widely known.“

UPDATE: It’s 2006 and I’m googling my head off… and still having trouble finding an explanation.

This, I do know… with relative certainty:

In Ontario, property rights come from the English common law. Common law is made- up by judges, during court cases- as a decision is made; it is recorded and used as a basis for the determination of future court cases. Under common law, people have the right to use and enjoy their property- they also have an obligation to NOT interfere with their neighbour’s use and enjoyment of THEIR property.

Now, from the perspective of environmental issues… for instance, polluting… it means that nobody can disturb anyone else’s property; during the use of their own property.

Anyone who is harmed this way may seek a remedy in the form of an injunction and reimbursement for damages. The amount of reimbursement is decreed by the courts- this means the court allows this to happen and then decides for how much you just sold your property rights.

The most common violations are: 1) trespass: any invasion of someone’s property, placing anything on someone else’s property. The Ontario Mining Act supercedes the laws against trespass. 2) nuisance: an indirect invasion of someone’s property, doing something intangible that interferes with someone else’s property. Neither a prospector nor the ministry is required to inform a landowner that a claim has been staked on his or her land, and a landowner has only one year to dispute a claim. 3) riparian rights: a property owner whose property is beside a lake or river is entitled to having it flow freely without obstruction or corruption or diversion. The Mining Act supercedes the authority of municipalities in many cases, undermining municipal planning exercises.

How many property owners get the whole story on what their rights are? How many citizens know this stuff? Under the OMA you could find someone digging up your yard and as long as they’ve given you notice and as long as they fix up any damage, they might be allowed to do it! You’d have to appear before the Commissioner of Lands and Mines and provide proof of the damages. Get in line!

Environment Probe has been telling us (for a long time) that “government policies that harm not only Canada's forests, fisheries, waterways, and other natural resources but also the economy.”

Since 2001, the Federation of Ontario Cottager’s Associations has been fighting for changes to Ontario mining regulations. After incidents in and around the Sharbot Lake area, the group has advocated that potential purchasers should be informed, and ready to ask appropriate questions of their lawyer regarding mineral versus surface rights. They have a website, too!

Now, let’s back up to:

http://publicdocs.mnr.gov.on.ca/View.asp?Document_ID=8313

“Findings… There is a common law right to those holding an interest in property, which includes an unpatented mining claim holder, to be notified of activities which may affect their rights. Therefore, it would be expected, in the normal course of events, a mining claim holder, or in this case Mr. McCombe, should have been notified of the Application for Provisional Certificate of Approval and had the opportunity afforded by that process to raise any environmental concerns. “

So wait a minute, does that mean that mining claims holders have to be told… but the property owner doesn’t?

And

:”Evidence and Submissions… Barry McCombe or his agents to be given right to cut for profit or personal use and without cost any timber including pine on the surrendered surface rights."

Huh, timber rights? You mean that the property owner doesn’t always own the right to cut down trees?

AND

“Surface Rights and Mining Rights Under the Mining Act…As we have noticed, minerals are the only resource that can be appropriated and exploited under a title that is obtained from the Crown as the result of one's own acts. Timber rights, oil and gas rights, fishing rights and trapline and outfitting rights are all issued by government only after a discretionary decision to do so.”

Oil rights, gas rights, fishing rights, trapline, outfitting?????? What are people buying?

How many urban dwellers are sitting on property that has some archaic but active limitation to what the owner believes to be his or her rights? How many of them even think about mining in their back yard?

Let me reiterate: Potential purchasers should ask appropriate questions of their lawyer to determine the specific rights that are included in every transaction.