Buying Rural Land in Ontario: Do You Own the Mining Rights Under It?

In Ontario, the ground you walk on and the minerals beneath it can belong to different owners. Three questions tell you which situation you are buying into, and whether anyone can register a mining claim on your land.

Imagine owning a rural property for a couple of years and then being told that a stranger has registered a mining claim on part of your land. Under Ontario’s Mining Act, that can happen, and the person who registered the claim is generally the one required to confirm it with you.

I’m Arthur Zhao with AZ Real Estate Partners. Whether that scenario is even possible on a given parcel is largely settled before you ever make an offer. It turns on three questions: who holds the mining rights, which half of the province the land sits in, and what was already on the ground in 2009. This article walks through each one in that order, then covers what the law says if a claim does arrive after closing, and how to check before your conditions expire.

Question 1: Who holds the mining rights?

The Mining Act defines mining rights as “the right to minerals on, in or under any land” and surface rights as “every right in land other than the mining rights” (s. 1). The same section defines a surface rights owner as someone shown in the land registry office as the fee simple owner of the land who does not own the mining rights.

So for any parcel, there are three broad possibilities:

• You own both. The mining rights were never separated from the land. The rest of this article mostly doesn’t affect you.
• The Crown holds the mining rights. This is the situation the 2009 amendments to the Act were written for, and Questions 2 and 3 decide what it means for you.
• Someone else privately owns them. The Act says no mining claim can be registered on land where the mining rights have been sold, located, leased or included in a licence of occupation (s. 30(a)). What that private owner can actually do is a title question specific to the documents, and one for your lawyer, not for a general article.

You will not find the answer in a listing description. It comes from the title: the parcel register and, where relevant, the original Crown grant of the land.

Question 2: Which side of the line is the land on?

Section 35.1(1) draws the line. Northern Ontario is the part of the province lying north of the south shores of the French River, Lake Nipissing and the Mattawa River. Everything else is Southern Ontario.

This matters because the Act treats Crown-held mining rights under privately owned surface land very differently on each side of that line. If you are not sure which side a particular property falls on, check it on a map against those three water bodies rather than assuming from the region’s name.

Crown-held mining rights under your land: south vs. north

Question 3: What was already there, and has anyone reopened it?

The southern withdrawal was a snapshot taken on October 28, 2009. Section 35.1(3) says any mining claims, mining leases or licences of occupation for mining rights that existed on that day are not affected and remain open for prospecting, sale and lease. Only when one of those interests later goes back to the Crown, by forfeiture, expiry, termination or otherwise, do those rights become deemed withdrawn too (s. 35.1(4)).

There is a second way the default can change: a surface rights owner can apply to have withdrawn mining rights reopened (s. 35.1(5)). If a previous owner did that, the land you are looking at may not have the protection you would assume from its location.

In practice, this means a southern property with Crown-held mining rights starts out closed to new claims, but you only know for sure once someone has checked the current claim map and the title history.

If a mining claim is registered on your land after you buy

Several parts of the Act come into play when the land is open and someone registers a claim:

• You must be told. When a claim is registered on land that has a surface rights owner, the claim holder has 60 days to give you confirmation of the registration in the manner the regulations require, or to ask a recorder for an order waiving that step. If neither happens, the claim becomes invalid 60 days after registration and the system cancels it automatically (s. 46(1) to (4)).
• Ground close to your home is restricted. Without the Minister’s consent, no claim can be registered on a residential or cottage lot smaller than one hectare. On a lot of one hectare or more, consent is needed for land within 100 metres of a dwelling on the lot and inside the property line (s. 29(1)(c) and (d)). Note that this is a consent requirement, not an absolute ban.
• Damage must be paid for. A person who prospects, carries out exploration on a claim, or conducts mining operations must compensate the surface rights holder for damage to the surface rights (s. 79(2) and (2.1)). If the two sides can’t agree, either can apply to the Ontario Land Tribunal to set the amount (s. 79(4)).

None of this gives the surface rights owner a veto over a properly registered claim. It gives you notice, distance from your dwelling unless the Minister consents otherwise, and a route to compensation.

How to check before your conditions expire

These checks fit naturally into the conditional period, in this order: