By Randy Hillier and Scott Reid

Most people think of land ownership as being two-dimensional-the sort of thing that you can plot on a map. But property ownership also has a third dimension, relating to what’s underneath the soil. Sometimes it’s the landowner himself who owns potentially valuable minerals that can lie under the surface of his farm or cottage or woodlot. But often, subsurface ownership rests with the province. And when it does-watch out!

It goes without saying that you cannot dig your way through a piece of land to see what’s lying underneath without disturbing whatever is sitting on top. So the process by which mineral exploration and mining takes place on land where the province owns the subsurface rights comes as a nasty shock to most people. The Ontario government sells exploration permits to prospectors which authorise non-owners to trespass, drill, excavate, and in some cases destroy the private property of registered owners. Once a prospector has such a licence, it is perfectly legal for him to enter any property where the province is the subsurface owner, without notice or warning, and to dig trenches and other exploratory pits.

In the event that there’s nothing of value under the surface, the landowner is receives no compensation for any damage or inconvenience created during exploration. But if there is something of value down there, it is the prospector, not the landowner, who has the right to sell the mining rights. The land can be torn apart in pursuit of its mineral wealth. And in return, the landowner will get nothing at all.

The provincial government is so aggressive in promoting mining that it even permits claims to be staked and exploration work to continue where all other economic activity has been halted, on Crown lands that are subject to aboriginal land disputes. In northern Frontenac County, the unresolved Algonquin land claim has caused the province to refuse all requests for the sale or lease of small parcels of Crown land to permit recreation and tourism development. But exploration for uranium continues unabated.

This recently led to a standoff led in part by Algonquins and in part by local property owners. Both parties in this unconventional alliance felt the same frustration-that non-controversial uses of the land which are clearly beneficial to local economic development are banned, but using the land in a way that could impose significant costs on the local community with all benefits going to prospectors and mining companies from outside the community is not merely permitted by the province, but encouraged!

This is not just unfair, it’s part of a pattern. Even though it is our municipal governments that have to bear the expense of servicing public infrastructure on crown lands, and in maintaining public roads that service the access points to any mines, all royalties from any potential exploitation of these Crown lands will be sent to Toronto and into the coffers of the provincial government.

In short, in Ontario subsurface rights always trump surface rights, and the privileges of those who seek to find the mineral wealth that can generate royalties for the provincial treasury always trump the rights of local landowners, of rural municipalities, and of aboriginal groups with outstanding land claims.

This arrangement was never fair, and frankly, change is overdue. We suggest the following three changes to provincial law, which would help to set things right:

First, Ontario should award all property owners the subsurface rights to their land.

There is no legitimate reason why the province continues to own the subsurface rights to any privately owned land in the province. In recognition of this fact, ten years ago the Mike Harris government enacted Bill 68, which awarded the ownership of mineral rights to private landowners in a large swathe of southwestern Ontario with bill 68. In retrospect, the intrusive exploration by graphite prospectors in some parts of eastern Ontario and by uranium prospectors in other parts of the region make it clear that the law should have been extended to all private property, across the province. Now is the time to enact a law making the provisions of Bill 68 universal, across Ontario.

Second, revenues from mineral revenues on Crown lands should be shared with municipalities.

As we noted earlier, it is the municipal governments that must provide and maintain the infrastructure to access these lands. It is the municipality and its residents who must deal with any negative consequences of mining-be they as minor as the increased truck traffic on the roads caused by Omya’s calcite mine in Lanark County, or as major as the tailings and leachate that can accompany hard-rock mining. Surely it is inappropriate to concentrate all the costs of mining in a rural municipality and all the benefits in the treasury at Queen’s Park.

It is also worth noting that mining activity never takes place in urban areas where the property tax revenues that are the sole source of income for municipal governments are the highest. Rather, mining activity typically occurs in rural municipalities with very limited tax bases, where an infusion of mineral revenues would be enormously helpful. At the provincial treasury, by contrast, the royalties from another new mine are an almost incidental source of wealth

Third, it should be the local people themselves who decide whether mineral exploitation goes ahead.

Whether an anticipated mine is located entirely on Crown land or in part on private property, it is the local community that must bear the associated costs. Therefore, it is reasonable that whenever a mine is contemplated, residents in the relevant municipality be able to have a direct say in granting it approval. We are both admirers of the maturity that voters are capable of showing when dealing directly with complex or multifaceted questions at the ballot-box, and we therefore favour a requirement that local residents approve all new mines by means of a local referendum, prior to allowing any mine to go forward.

We are confident that if these three changes were to be incorporated in Ontario’s mining legislation, the kinds of confrontations and community hostility that have accompanied announcements of potential mining activity would be a thing of the past.

This entry was posted on Friday, April 27th, 2007 at 12:01 pm and is filed under Columns by Randy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.