Mining rights in cottage country

By Charles Long

Editor’s note: This article was originally published in Cottage Life magazine in 2002. There is an updated story on the Ontario Mining Act and how it affects cottagers in the May 2009 edition of Cottage Life. In the meantime, this article is provided to give background information on this issue. Please click here for a list of links and updated resources

Animosity springs not so much from changes in the industry as from a growing awareness of just how the deck is stacked.

Peter Griesbach got a shock when he began to clear brush on his Potspoon Lake property, north of Kingston, Ont. “I found an eight-inch pine, cut off four feet from the ground and topped with an aluminum tag. There was a tangle of fine plastic thread around, used to survey distance. It’s a stomach churner,” he says. “Took me a week to even find anybody who could tell me what was going on.”

Like Griesbach, the 150 property owners who packed a Stanleyville hall, near Perth, last December also faced a nasty surprise. Prospectors were staking land for a Utah-based mining company, land that local cottagers and residents had mistakenly believed was all theirs. Long-time occupants were learning the hard way that, under Ontario law, they owned only the surface rights. The Crown still held rights to the minerals in the ground, and the prospectors, looking for graphite, had been crossing property lines and registering a flurry of new claims with the blessing of the Ontario Ministry of Northern Development and Mines (MNDM). According to Griesbach, ministry officials came to the Stanleyville meeting with pro-mining speeches and got “a pretty negative reaction.”

The animosity springs not so much from changes in the industry as from a growing awareness of just how the deck is stacked. Ministry and industry officials, more accustomed to working in northern parts of the province, where mining is a major employer and most of the land Crown-owned, are as often surprised by southerners’ ignorance of the law as southerners are surprised by its sweeping powers. They are learning, for example, that the purpose of the Ontario Mining Act was never to protect landowners but to encourage exploitation of the province’s mineral resources. Ontario passed the original act in 1868, when the province was betting its future on a resource economy, and in the aftermath of whoop-it-up gold rushes that had begun in California 20 years earlier. The law has been amended since, to control the closing of abandoned mines, the discharge from smelters, and the rehabilitation of open pits, for example, but the underlying purpose remains the orderly conduct of mineral extraction.

In general, the act allows licensed prospectors to stake any land where the Crown holds mineral rights, and where there is no prior claim in force. The provincial mining recorder, an MNDM official with quasi-judicial powers, maintains maps of active claims and areas open to claim. The prospector checks that a rival hasn’t already staked the area, but does not necessarily notify the surface owner. Traditionally, a prospector walked the land and drove a stake (or left a blazed stump) at each corner of the claim. A conventional unit of 16 hectares might be combined with others to cover an even wider area. So four stakes could mark a claim large enough to encompass a number of properties, including cottages. And the occupants might never know that a claim had been staked. Those stakes, when tagged and recorded, mark the area as the prospector’s exclusive domain to explore further.

Indeed, further exploration is essential if the claim is to be maintained. Unless the prospector spends at least $400 a year per unit on assessment work like test drilling, the claim can lapse. Unlike staking, at the assessment stage the prospector has to notify the surface owner before entering the property to work. That notification is often the first warning surface owners receive that their property is in the sights of a mining company. For cottagers caught unawares, there’s no waiting period and no time to call a lawyer. Once notification is made, the equipment can start rolling over the property line. Surface owners have the right to claim compensation for any damage caused by the assessment work, but limited legal grounds to stop it.

While assessment with so little warning seems like a brute invasion to the unwary, it’s still a big step short of a mine. 

In order to extract and sell minerals, the claimant must obtain a mining lease from the MNDM. A mining lease, good for 21 years and renewable, usually means that peaceful tenure is about to end as the earth gets turned inside out.

While the business of mapping, staking, and assessing deposits may be old hat to prospectors, cottagers have largely lost sight of the historic act and its modern implications. The oversight is understandable. In heavily populated parts of the province, mineral exploration is rarely an issue. In long-settled, mostly southern areas, surface owners might also hold the mineral rights because those titles were registered early – before the Mining Act was passed in 1868, or before the Public Lands Act was amended in May of 1913 (more on that in a bit). Or, later development might have pushed land use into excluded categories. The Mining Act prohibits claims on residential subdivisions, for example, as well as on railway lands, Crown townsites, Indian reserves, and provincial parks. Further, section 32 of the act prohibits prospecting and staking on that part of a lot where there is a dwelling, cemetery, public building, garden, orchard, or crops that may be damaged. Section 32 is open to interpretation and has been the basis of recent disputes. Whether a managed woodlot constitutes a crop, whether a cottage is a dwelling, and exactly how much of a lot is excluded by these impediments are some of the fine points still under review. Nevertheless, section 32 does make mineral exploration more difficult in heavily developed areas than in the vast swaths of undeveloped Crown land farther north.

Of the 55,000 new claims staked in Ontario during the year 2000, only 842 were in southern Ontario, which does not include Muskoka. That, however, was of little consolation if your own piece of paradise was part of the 842. Arriving at the cottage to find stakes, tags, or surveyors’ tape invading what you thought was a private family haven can stop the heart. But the head should know that probability, if not the law, still favours the surface owner. According to the MNDM, only one in 10 projects (a project may include more than one claim) ever reaches the stage of test drilling. And only one in every 1,000 of those tests ever finds enough mineral value underground to justify a mine, making the odds one in 10,000 between the prospector’s claim and a slag heap at the cottage door. In theory.

In fact, the reassuring odds are easily outweighed by the shock of discovering that ownership isn’t what it was presumed to be. Real estate agents don’t normally point out that the purchase doesn’t include mineral rights. And after a cottage has been passed down through a generation or two, any original comprehension of missing mineral rights will have been long forgotten.

Peter Griesbach had assumed he owned all rights to his 70-hectare property, but eventually unravelled a murky history of a former owner alleged to have sold access to a prospector who left his portion of the taxes unpaid, at which point the Crown took over the mineral rights. “And I’m a professional real estate appraiser,” says Griesbach. “I should have known that stuff.”

That stuff is a 300-year mishmash of legal evolution. Private ownership in Upper Canada came about through Crown grants, titles registered by various colonial administrations, and the buying and selling of those titles between individuals.

Next:

Part 2 - History of the Ontario Mining Act

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Part 3 - What can a cottager do?
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Published in the July/August 2002 issue of Cottage Life magazine.

Copyright © 2002, 2009 by Cottage Life. All rights reserved. Reproduction of any article, photograph, or artwork, for other than personal use, in whole or in part, without the written permission of the publisher is strictly forbidden.