Mining companies currently can invade your property

On March 17 of this year, six aboriginal leaders were sentenced to six months after they violated an injunction, protesting against drilling for platinum on traditional aboriginal land north of Thunder Bay. Despite the Supreme Court of Canada's rulings requiring consultation with First Nations prior to making decisions that affect their lands, the Ontario Government allowed Platinex (a mining company) to stake claims and begin exploratory drilling on an aboriginal band’s traditional lands without any consultation.

In response, six aboriginal leaders decided to peacefully oppose Platinex's mineral exploration activities on their lands. Platinex in turn sued their band for $10 billion for denying the company access to the mining claims. The band has now gone bankrupt since accruing over $500,000 in legal fees resisting Platinex's action. In November of last year, Platinex filed a motion seeking to find the band and its leaders in contempt of court and seeking fines and imprisonment. The motion was granted. The six band leaders were arrested and incarcerated in March. They were released on May 29th 2008.

The Ontario Mining Act, passed in 1873, is based on a free entry system. Anyone 18 or older can get a prospector's licence and stake mineral claims on any land in Ontario. The Mining Act has no provisions for aboriginal people and the government has to understand native people's concerns. The Ontario Mining Act was passed in 1873, at a time when picks and shovels were used for mining. The free entry system, mandated by the Mining Act, gives the mining industry and others free access to lands in its search of minerals regardless of who owns the surface rights.

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.

Recently, a number of landowners in the Bedford area have found, after the fact, that their properties 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 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. 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 work on the claim that there is a legal requirement for notification.

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 does not apply to unused lands owned by a property owner or an aboriginal band.

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. 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.

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 square meters.

The Ontario's Mining Act is an archaic piece of legislation that should concern all property owners in rural Ontario who own stretches of land that is vacant. They should worry whether they own the mineral rights under their land. A lot of them don't, and they're in a worse position than First Nations. Currently, if a private property owner doesn't own the surface rights and mining rights to their property, they could be surprised to find a prospector staking a claim in their backyard. Prospectors can claim mineral rights beneath a private property after giving the owner 24 hours notice. Prospectors can get a licence to enter their land uninvited and unannounced to cut survey lines, scrape away topsoil, and drill – and there's no requirement for consultation if there's no Indian land claim on the property in question.

The Mining Act in Ontario hasn't had a major overhaul in about 100 years. There certainly needs to be comprehensive changes to the Mining Act that reflect the obligation on other parties to consult with First Nations and other property owners in rural areas for the purpose of accommodating their interests before they simply walk into their land and after a mere 24-hour notice, undertake exploration on their land. Mike Gravelle, the minister of Northern Development and Mines, has certainly indicated it's timely the Mining Act in Ontario have a significant overhaul.” Amen to that.