Feature Article January 30, 2002
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Surface and Mining Rightsby Jeff Green (with information provided by Michael Leibson)Unbeknownst to many rural landowners (until very recently, myself included), there are two kinds of property rights that pertain to land ownership. Any land that is transferred comes with surface rights to that land, but mining rights are sometimes not included. In general all the land granted as patents by the Crown prior to 1913 came with mining rights. Land patents after 1913 do not necessarily include mining rights.
If the property owner does not hold the subsurface rights to their land, the Mining Act permits anyone holding a prospectors license the right to prospect on claimable land without the consent of the landowner. This means prospectors are not subject to trespassing laws. The license can be obtained at a cost of $25. In fact, even the police do not have the same rights to enter and effect private property.
At some point after a claim is staked, however, prospectors are obligated to do an appraisal. Before doing this, they are obligated to inform the landowner they are coming. However, they are only required to give 24 hours notice. The manner of notification is not specified, and the landowner does not have the right to refuse entry.
To find out if you own the mining rights to your land, it is possible to check the Ministry of Mines and Northern Development at the following URL www.mndm.gov.on.ca/mndm/mines/LANDS/mlsmnpge.htm. Once you get on the site, scroll down to the disclaimer on the bottom of the page. This says the information posted may not be accurate. You must click to accept this. On the next page, click on Claims Maps. Next, click on townships, and enter your townships name. (You will get to use your old township name; this ministry hasnt heard of amalgamation yet.)
Once the map comes up, you will have to use the zoom tool on the left of the screen and click on a spot as close as you can tell to the property you are researching. You may have to zoom more than once, but eventually you should be able to find the property you seek, and you will see a circle in the middle of it. If the circle is filled in, the rights are not owned by the crown and the land is probably not subject to mining claims. If the circle is half filled in and half white, the crown retains the mining rights and the land is subject to mine claims.
The story does not end there, however. It turns out the filled in circle only means the crown does not hold the mining rights. It is still possible that a previous owner of the property sold them. It can be difficult and costly to determine if this is the case. Still, the chances of finding prospectors prowling around your back 40 are greatly diminished if that circle is filled in, because prospectors generally use these same maps to determine where they can prospect without having to ask permission.
