There comes a time in every explorationist’s life when he or she must enter upon private property. In most cases, no problems will be encountered, but every so often they are. The problem usually takes the form of a surface owner who is somewhat less than enthusiastic about some “idiots” running around his property doing things to his trees, crops, gardens, fences, livestock, or what have you, that should not be done (unless, of course, a suitable compensation changes hands). It is also surprising how often the surface rights in question are “in the process” of being subdivided and how often this has just been done very successfully by a “neighbor” — usually the definition of the word “neighbor” is somewhat vague and may even include someone several miles away with prime lakefront cottage property. A more serious problem is the surface owner who objects to mining as a matter of principle and who often is not prepared to discuss entry, let alone be reasonable about it.
In most jurisdictions of Canada, the holder of a current prospecting or free miner’s licence may, as of right, enter upon Crown-owned lands that are open for staking and proceed to prospect on them and stake them. As the mining laws are within the jurisdiction of the province or territory, federally-owned Crown lands must be viewed as privately owned. In addition, most mining statutes contain provisions that limit, or give the authority to limit, entry and staking.
Problems often arise with respect to entry when the surface rights overlying an unpatented claim are privately owned. In most jurisdictions, the claim-holder is required to do assessment work in order to maintain the claim. But can the claim holder legally enter upon the surface rights to do such work even if the surface owner objects? The answer to this question lies in the relevant provincial or territorial legislation and not in the usual approach taken in the industry that “as the holder of the mining claim, of course I have the right to go on the surface rights to assess it.”
Each province and territory will vary in its approach to the matter of entry upon privately owned lands, and to a large extent this will be somewhat related to its history. In the mid-western provinces, farming has long been a mainstay, and mining on any large scale is relatively recent. Therefore, logically, the relevant legislation is concerned with the farmers’ rights. Accordingly, the rights of the prospector can be expected to be more restricted than in provinces such as Ontario or British Columbia where mining forms a large part of the history.
Even in such mining-oriented provinces as Ontario, Quebec and British Columbia, the applicable mining statutes vary. For example, in Ontario, the Mining Act takes the approach that, although a person cannot prospect for minerals or even acquire any right or interest in a claim unless he is the holder of a prospector’s licence (section 18), once such a licence is obtained, the holder thereof may work his unpatented claim and may enter upon the surface rights and use and occupy them as necessary for the efficient exploration, development and operation of the mining rights. These rights are found by looking to a number of sections of the Mining Act, including sections 18, 28, 29 and 60. The rights provided are subject to the statutory duty to compensate the surface owner or occupant “for all injury or damage that is or may be caused to the surface rights by” the entry and work. If the parties cannot agree upon the amount of this compensation, resort may be had to the mining and lands commissioner. This appears to give the claim- holder all the rights he may need, but, unfortunately, this is not necessarily the case. The Mining Act does not give any guidance as to how its provisions are to be applied with other statutes that deal specifically with trespass and the rights of a property- holder to not only restrict entry but also, in certain circumstances, to eject offenders from his property (according to the Trespass To Property Act) or to the common law. In addition, the Mining Act only addresses the question of compensation for injury or damage to the surface rights. What is the situation of the person who carries on a business on his property, such as breeding prize livestock, mink, and so on, that may suffer or even be wiped out if certain kinds of work are carried on? Such a person would certainly want to be, and should be, protected such that the interests and rights of both parties are taken into consideration. The logical way to accomplish this is through negotiation. The claim-holder will, however, want to consider things very carefully before charging ahead and relying upon his rights under the Mining Act without the consent or agreement of the surface owner. Notwithstanding these rights contained in the Mining Act, a determined surface owner can throw up numerous roadblocks, both practical and legal, to inhibit or prevent a claim-holder from entering upon the surface rights and carrying out work.
The above relates to Ontario law, but the concepts indicated apply to most other jurisdictions as well. The specific provisions of the applicable statute may be different, but the problem of trying to balance the respective rights of two different property- owners will remain. The “bottom line” is that, regardless of the jurisdiction involved and the statutory rights of a claim-holder, it is always best to make an honest and courteous attempt to get the surface owner to agree that you, as a claim-holder, may enter upon the surface rights and carry out exploration work. Often the solution to an apparently difficult situation may be as simple as “educating” the surface owner to the effect that the claim-holder is a responsible party who will act reasonably and with consideration of the surface owner’s property and situation. It may even be worthwhile to offer, or firmly agree, to buy the surface rights at a premium price (say, two or three times the value appraised on the basis of the surface owner’s current use — not as mining lands) if a specified event, such as a production decision, occurs. Such an agreement may help convince the surface owner that you are responsible and that his property value is not going to be destroyed by your actions.
The mining company and the explorationist rely to some extent upon the goodwill and co-operation of the community; so even if you have a “big stick,” it is usually preferable to “tread softly” — and courteously. Karl J. C. Harries is a graduate mining engineer and a partner with the Toronto law firm of Fasken & Calvin. The information in this article is summary and general in nature and is not intended to be taken or acted upon as legal advice.
Be the first to comment on "Law PROPERTY RIGHTS"