Withdrawal and reopening of surface and/or mining rights - procedure
This procedure applies to the withdrawal and reopening of prospecting, staking out and sale or lease of any Crown lands, mining and/or surface rights under the Mining Act.
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Subject: Withdrawal and Reopening of Surface and /or Mining Rights – Section 35, Mining Act
Procedure: PL 3.03.03
Compiled by: Crown Forests and Lands Policy Branch, Crown Lands Section
Date issued: April 1, 2019
Replaces directive title: Withdrawal and Reopening of Surface and /or Mining Rights – Section 35, Mining Act (Policy and Procedure)
Date issued: February 11, 1997
Most dispositions of public lands are within the discretionary authority of the Ministry of Natural Resources and Forestry (MNRF) through the Public Lands Act (PLA). Public lands are either pre-selected by the Ministry for disposition or are selected by the applicant, subject to the approval of the Ministry. One exception is public land subject to mining claim registration under the Mining Act. Upon completion of prescribed assessment work, registered mining claims are eligible for the non-discretionary issuance of a mining lease. A mining lease may include surface and mining rights, or mining rights only.
1.1 MNRF requests to withdraw surface and/or mining rights
If MNRF program interests (e.g. land claim settlements) require public lands be protected from disposition under the Mining Act, MNRF can request that the Ministry of Energy, Northern Development and Mines (ENDM) withdraw the lands from claim registration. The protection which MNRF program interests require can usually be achieved by withdrawing only the surface rights from claim registration. In some situations, however, it may be necessary to request a withdrawal of both the surface and mining rights from claim registration. So as not to unduly interfere with legitimate mineral exploration activities, withdrawal should be requested only where necessary.
If an application is received for disposition of public lands under the PLA that is not situated on a pre-existing registered mining claim, it is unnecessary to withdraw the lands from mining claim registration. The application for public lands disposition will automatically take priority over any subsequent registration of a mining claim with respect to the surface rights. However, consistent with PL 4.02.01 Application Review and Land Disposition Process, the Mining Recorder should be advised of the pending disposition as soon as possible.
It is also unnecessary to withdraw lands for Crown land forest management purposes. All timber and trees, along with the right to enter the lands for forest resource harvesting and to make necessary roads for those purposes, are reserved to the Crown in Mining Act dispositions.
1.2 MNRF requests to withdraw surface rights on a pre-existing claim
Where there is no previous disposition of surface rights, and there is a pending third-party application(s) to MNRF for disposition of surface rights, the registered claim holder has the first right of refusal to surface rights for prospecting and the efficient exploration, development and operation of the mines, minerals and mining rights. Any subsequent disposition of the surface rights under the PLA, or any subsequent requirement to retain the surface rights for Crown or public use, requires the consent of the claim holder. If the claim holder does not consent, the Mining Recorder may make a determination or refer the matter to the Mining and Lands Tribunal for a determination.
The registered claim holder’s first right of refusal to surface rights is subject to the statutory surface rights reservation imposed by subsection 40(3) of the Mining Act. The claimholder does not have first right of refusal to surface rights within 90 metres of a King’s Highway, or 120 metres from the high-water mark of a water body, unless the reservations have been waived by the Minister of Energy, Northern Development and Mines.
Once a registered claim proceeds to mining lease, inclusive of surface rights, the only option to regain the lands for Crown or other public use is to acquire the rights from the lessee.
1.3 PLA dispositions on Crown land under withdrawal order
Withdrawal orders pertain only to Mining Act dispositions and do not prevent dispositions under the PLA, or the issuance of permits under the Aggregate Resources Act (ARA). If a disposition under the PLA or the ARA will not conflict with the purposes for which the withdrawal was made, that disposition may occur without the reopening of the lands under the Mining Act.
The withdrawal of surface and/or mining rights does not affect prior existing dispositions made under the PLA or the Mining Act.
This procedure applies to a request for withdrawal or reopening of surface and/or mining rights under the Mining Act.
- To ensure MNRF program interests are not compromised through the non-discretionary disposition of mining lands:
- This objective will be achieved by the MNRF field office requesting withdrawal of surface and/or mineral rights from ENDM, as required. Withdrawal of surface and/or mining rights will ensure MNRF program interests are not compromised by third parties obtaining any rights through online mining claim registration (i.e. disposition of rights to mining lands, including first right of refusal to the surface rights).
- Approval of withdrawal requests is at the discretion of ENDM and requires input from the Resident Geologist, a geological review and regard for the ENDM Statement of Environmental Values.
- Minimizing areas of public lands withdrawn under the Mining Act:
- MNRF field offices should ensure that areas to be withdrawn are kept to the minimum necessary to protect MNRF program interests. Withdrawals result in avoidance, delays, loss of mining claim registration, and loss of mineral development opportunities.
- Removing withdrawal orders no longer required:
- MNRF field offices will promptly advise the local Deputy Mining Recorder as soon as a withdrawal order is no longer required, so a reopening order may be made by ENDM.
2.2 Requesting a withdrawal order
Prior to requesting a withdrawal order, the MNRF field office will:
- identify the disposition requirement or MNRF program interest to be protected;
- consider whether it is necessary to withdraw the surface rights, the mining rights, or both, for the affected lands; and
- liaise with the ENDM Resident Geologist, unless timing is critical and liaising would cause an unacceptable delay, threatening the viability of the program interest.
After deciding to request a withdrawal order, the MNRF field office will forward a request to the Deputy Mining Recorder, signed by the MNRF Supervisor, which includes:
- a completed and signed Request for Withdrawal or Reopening Order form;
- the corresponding mapping shapefile; and
- compliance with any additional instructions and/or requirements provided by ENDM.
2.3 Requesting a reopening order
When a withdrawal order is no longer required, MNRF field offices will promptly advise ENDM that the lands may be reopened for staking by ENDM.
The request to rescind the order will include:
- a completed and MNRF Supervisor signed Request for Withdrawal or Reopening Order form referencing the withdrawal order number to be reopened; and
- compliance with any additional instructions and/or requirements provided by ENDM.
In this procedure:
- claim holder
- means the holder of an unpatented mining claim, registered under the Mining Act
- Mining Recorder
- means the Mining Recorder of the Ministry of Energy, Northern Development and Mines
- withdrawal order
- means an order under the Mining Act to withdraw from prospecting, registration, and from sale or lease, any lands, mining rights or surface rights that are the property of the Crown
- program interests
- means any resource interest of the Ministry of Natural Resources and Forestry (MNRF), including activities of the Ministry in support of initiatives of the Ontario government and its ministries
- reopening order
- means an order under the Mining Act to re-open for prospecting, mining claim registration, lease and sale, the lands (i.e., mining rights or surface rights) that have been withdrawn under the Mining Act
- Resident Geologist
- means the local Resident Geologist of the Ministry of Energy, Northern Development and Mines or their delegate
- Mining and Lands Tribunal
- means the Mining and Lands Tribunal within the Environment and Land Tribunals Ontario (ELTO) cluster
- Mining Act, Sections 30 (b), 35 (1) (a), 51 and 92