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July 25, 2012

Law Day

A few months ago, I blogged about how far up and down you own on your property. Today, I thought I would focus in on one of those: mining rights.

In Ontario, whether you own the subsurface rights to your property depends on a lot of things. First, when the Crown first gave the land to a settler hundreds of years ago, did they keep the subsurface rights? In large parts of the province, particularly the north, mining rights were reserved in what is called the “Crown patent” when lands were initially distributed. If you do not have the subsurface rights, you cannot prospect or mine.

Second, in any of the transfers before you became the owner, did anyone sever off the subsurface rights? I once had a client who wanted to sell a property, and in the process of helping her do that, I discovered that a prior owner – 100 years earlier – had sold the land but kept the mining rights to himself. Three years later, we are still trying to determine who exactly owns the subsurface rights. It is possible to sell the surface rights only to a property; it is rare, especially in parts of the province with minimal mining opportunity, but it can happen.

Finally, is there anything in the Mining Act of Ontario that prevents you from being able to do anything with your subsurface rights? For the most part, lands in subdivisions cannot be mined, for obvious reasons. There are also other exceptions in the law; even if you have a piece of vacant land in the middle of the wilderness, you may still be blocked from trying to mine.

As always, check before you dig.

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About Cesia

Cesia is a real estate lawyer at Wall-Armstrong and Green, a boutique law firm in Barrie focusing on real estate and estates. When she's not online, she can usually be found in her garden.

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