OPINION — The risks of staking claims over old Ontario mine

Part VII of the Mining Act of Ontario, which deals with matters relating to the environmental reclamation of mining lands, was proclaimed into force in 1991. The first important decision interpreting that part is “MacGregor v. The Director of Mine Rehabilitation.”

The facts in the MacGregor case are fairly straightforward. In 1970, MacGregor staked an area that had previously been mined. In 1984, he converted his claims to a mining lease in order to keep his property in good standing.

After Part VII came into force, MacGregor was asked to reclaim the property by the Director of Mine Rehabilitation. He appealed to the Mining and Lands Commissioner. Rendered two days before Christmas, the decision was hardly a Christmas present: the Commissioner reaffirmed the Director’s order that MacGregor was responsible for reclaiming the property.

In order to understand the decision, it is necessary to recognize the unique set of terminology found in Part VII. The key terms for purposes of this article are “proponent,” “project” and “site.”

A “proponent” is defined as the holder of an unpatented mining claim or licence of occupation or an owner (which includes owners of patents and mining leases). A “site” refers to land on which a “project” is situated, and a “project” includes the activity of “mining” and an abandoned “mine.” In addressing the question of whether MacGregor had any responsibility under Part VII, section 149(1) was the crucial section. It states that “The Director cents of Mine Rehabilitation] may . . . require the proponent of a project the Director considers abandoned cents as of June 3, 1991] . . . to submit . . . a proposed closure plan to rehabilitate the site.” Since there was an old mine on MacGregor’s leased land, he was found to be in possession of a “site.”

The next question was whether MacGregor could be held liable under section 149(1) if he was not the one who had abandoned the mine that caused the damage (that is, the “project”). The Commissioner concluded that he could be liable.

The Commissioner went on to find, however, that MacGregor abandoned a project of his own on the site. In this respect, he reached the rather startling conclusion that MacGregor’s grassroots exploration activities constituted “mining” and that, when he stopped his activities, he had abandoned a project. It would appear that the Commissioner accepted the view of one of the witnesses for the Director of Mine Rehabilitation, who said that “while chipping away at rocks . . . may not be mining cents in ordinary circumstances], if cents done] . . . in the vicinity of a mine cents it is] . . .”

With respect, it seems absurd to suggest that grassroots exploration constitutes “mining.” While “mining” is defined in the Mining Act as work performed “in or about” a mine or an abandoned mine, the type of work that the definition is trying to capture is clearly work “in or about mine workings” and not any work of any type merely done on lands in the vicinity of a mine.

In summary, until Part VII receives further scrutiny by the courts and the Commissioner, prospectors must carefully weigh the risks of staking old mine sites in Ontario.

If the law has been correctly interpreted in the MacGregor case, a mere staker can be held liable to reclaim an old mine existing on land within his or her claim. This possibility appears more likely if the claimholder has engaged

in any grassroots exploration on the property.

— The author is counsel for Noranda Mining & Exploration, based in Toronto. He co-authored an earlier paper on this subject with Michael Bourassa, a lawyer with Aird & Berlis.