| May 07, 2009

Back to HomeFeature Article - May 1, 2009 Ontario Mining Act reforms – surface rights holders win major victoryBy Jeff Green

Over the past eight years there has been a string of stories in this paper and many other media outlets about landowners who were out walking on their rural properties and found that swaths of trees had been cut, and boundaries marked off with stakes.

They soon realized that their properties had been staked by prospectors. In many cases the people never knew when they bought their properties that they only owned the surface rights; the subsurface rights belonged to the Crown and were available for mineral staking. They also found that the prospector’s right to get to the subsurface was stronger than that of the surface rights holder.

People such as Peter Griesbach, Maureen Towaij, Marty Cadieux, Elva and Ron Price, Marilyn Crawford, and Gloria Morrison have all told their story to local, regional, and national news outlets.

Last week, almost 90 years after Ontario first looked at the surface/subsurface rights issue, the issue was solved once and for all.

As part of a major re-writing of the Ontario Mining Act, as of midnight last Thursday night, April 30, 2009, all lands in southern Ontario wherein the surface rights owner does not own the subsurface rights were withdrawn from staking.

Existing mineral claims on these kinds of split lands will continue, but should those claims lapse the lands will not be open for re-staking.

This constitutes a major victory for groups such as the Bedford Mining Alert and the Citizens Mining Advisory Group (Tay Valley) both of which were formed in response to this very issue.

“There are still some active claims in Bedford by Graphite Mountain Inc.” said Marilyn Crawford of the Bedford Mining Alert, “but I am excited and pleased that after all this time, all this effort, the surface rights holders have been heard”.

Peter Griesbach is a surface rights owner whose land was staked by prospectors. After his initial anger at the incursion on his land abated, he became involved in the legislative process that led to the changes. As the representative of the Federation of Ontario Cottagers on a government review panel dominated by mining industry representatives, Griesbach worked for several years on a wide variety of issues.

“When I first talked to people in MNDM (the Ministry of Northern Development and Mines) about the surface rights issue, they said the bureaucratic will was there, but we needed to do something about the political will”.

Griesbach said the efforts of groups like BMA and CMAG, and media stories over the years, as well as the publicity around the mining issue in North Frontenac over the past three years have all had a cumulative effect.

“It's like water dripping on a stone. It takes a long time, but as long as the water keeps dripping, eventually the stone gives way,” he said.

In regions such as North Frontenac and Addington Highlands townships, which are made up mostly of Crown land, the impact of the new act will be less pronounced than in other parts of Southern Ontario.

It is unclear, however, if the new act would have had a major impact on the uranium exploration dispute in North Frontenac Township.

Although a few of the Frontenac Ventures mineral claims were on private lands, most were on Crown lands. That dispute, and the one in Big Turtle Lake in North Western Ontario, were part of the impetus for a major Aboriginal focus in the new legislation.

During the uranium exploration protests at Robertsville in 2007 and 2008, Robet Lovelace of the Ardoch Algonquin First Nation and others often made the point that the mining act makes no reference to Aboriginal peoples.

The Aboriginal communities in that case, and their lawyers, repeatedly said that a consultation process needed to be in place before exploration would be allowed to commence on lands that are subject to Aboriginal claims.

The details are still to be worked out, but the government appears to be responding.

The announcement about the newly introduced legislation on the MDNM’s website included the following:

“The proposed legislation includes a number of ground-breaking provisions, which would make Ontario a national leader in mineral resource stewardship, including:

Incorporating Aboriginal consultation in mining legislation and regulations

Requiring awareness training to obtain a prospector's licence, and

Introduction of a dispute-resolution process for Aboriginal-related issues in mining”.

The regulations regarding these provisions will not be worked out until later this year, and there are several issues to be resolved.

It is unclear how the Aboriginal provisions will impact on off-reserve Aboriginal communities and on lands within the Algonquin Land Claim territory. 

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