In the Province of Ontario, mining is largely regulated by the provincial government, with the Ontario Ministry of Northern Development and Mines (MNDM) and the Ontario Ministry of Natural Resources (MNR) acting as the two main oversight bodies. The Canadian federal government may also be involved in the mining process where First Nations matters arise or where the subject lands are federally regulated, as is the case in respect of uranium mining or when the lands are classified as navigable bodies of water.
This article provides a short summary of real property rights relating to mining in Ontario. There are three basic types of mining tenure that can be acquired in Ontario:
- a mining claim;
- a mining lease; and
- a freehold interest in land.
Mining claims can only be obtained by an entity that holds a prospector’s licence from the MNDM. A licensed prospector is permitted to enter onto provincial Crown and private lands that are open for exploration and stake a claim on those lands. Notice of the staked claim can then be recorded in the mining register maintained by the MNDM. Once the mining claim has been recorded, the prospector is permitted to conduct exploratory and assessment work on the subject lands. To maintain the mining claim and keep it properly staked, the prospector must adhere to relevant staking regulations and conduct all prescribed work thereon. The prescribed work is currently set at C$400 per annum per 16-hectare claim unit. The prescribed work must be completed as no payments in lieu of work can be made. No minerals may be extracted from lands that are the subject of a mining claim – the prospector must possess either a mining lease or a freehold interest to mine the land.
A mining claim can be transferred, charged or mortgaged by the prospector without obtaining any consents. Notice of the change of owner of the mining claim or charge thereof should be recorded in the mining registry maintained by the MNDM.
If a prospector wants to extract minerals, the prospector may apply to the MNDM for a mining lease. A mining lease, which is usually granted for a term of 21 years, grants an exclusive right to the lessee to enter upon and search for, and extract, minerals from the land, subject to the prospector obtaining other required permits and adhering to applicable regulations.
Pursuant to the provisions of the Ontario Mining Act (the Act), the holder of a mining claim is entitled to a lease if it has complied with the provisions of the Act in respect of those lands. An application for a mining lease may be submitted to the MNDM at any time after the first prescribed unit of work in respect of the mining claim is performed and approved. The application for a mining lease must specify whether it requests a lease of mining and surface rights or mining rights only and requires the payment of fees.
A mining lease can be renewed by the lessee upon submission of an application to the MNDM within 90 days before the expiry date of the lease, provided that the lessee provides the documentation and satisfies the criteria set forth in the Act in respect of a lease renewal.
A mining lease cannot be transferred or mortgaged by the lessee without the prior written consent of the MNDM. The consent process generally takes between two and six weeks and requires the lessee to submit various documentation and pay a fee.
FREEHOLD MINING LANDS
A prospector interested in removing minerals from the ground may, instead of obtaining a mining lease, make an application to the MNR to acquire the freehold interest in the subject lands. If the application is approved, the freehold interest is conveyed to the applicant by way of the issuance of a mining patent. A mining patent can include surface and mining rights or mining rights only.
The issuance of mining patents is much less common today than in the past, and most prospectors will obtain a mining lease in order to extract minerals. If a prospector is issued a mining patent, the mining patent vests in the patentee all of the provincial Crown’s title to the subject lands and to all mines and minerals relating to such lands, unless something to the contrary is stated in the patent.
As the holder of a mining patent enjoys the freehold interest in the lands that are the subject of such patent, no consents are required for the patentee to transfer or mortgage those lands.
OTHER MINING RIGHTS
Prospectors may also apply for and obtain a land use permit (LUP) from the MNR. An LUP is considered to be the weakest form of mining tenure, is issued for a period of 10 years or less and is generally used where there is no intention to erect extensive or valuable improvements on the subject lands. LUPs are often obtained when the land is to be used for the purposes of an exploration camp. When an LUP is issued, the MNR retains future options for the subject lands and controls its use. LUPs are personal to the holder and cannot be transferred or used as security.
Prior to 1964, mining licences of occupation (MLO) were issued, in perpetuity, by the MNDM to permit the mining of minerals under the beds of bodies of water. MLOs were associated with portions of mining claims overlying adjacent land. As an MLO is held separate and apart from the related mining claim, it must be transferred separately from the transfer of the related mining claim. The transfer of an MLO requires the prior written consent of the Ministry. As an MLO is a licence, it does not create an interest in land.