How should we solve land disputes?

The headline of a recent article in the Globe and Mail entitled “Land owners are being undermined” caught my eye.

For those who missed it, the article was about two separate disputes between landowners (surface rights holders) and mineral exploration companies. One involved a farmer near Kamloops, B.C.; the other involved rural landowners north of Kingston, Ont. In both cases, emotions were at a boiling point. Unfortunately for the readers, the author’s arguments in support of the surface rights owners were just as emotional.

The author, Karen Campbell, a staff lawyer with West Coast Environmental Law, did not represent the Mining Act of Ontario or the mineral exploration industry fairly. There were several generalizations, omissions of fact, and statements that were simply wrong.

Campbell stated, “Ontario’s Mining Law is outdated.” In fact, Ontario’s Mining Act was last revised in 1998 and according to Michael Bourassa, a mining lawyer with Fasken Martineau DuMoulin LLP, “A major part of that revision had to do with improving the compensation process of the surface rights owners.”

According to Campbell, “The five-year mining licence gives the holder almost unfettered rights to enter, occupy and use many lands.” While it is true that a claim may be staked without the surface rights owner’s consent, Section 78 of the Mining Act requires that the holder of the claim notify the surface rights owner of his intention to perform assessment work on that claim. In addition, he must notify the owner of his intention to begin exploration at least 24 hours before starting.

The final and perhaps most nave statement from Campbell is: “One can only imagine the hue and cry if a company were proposing to dig up a Toronto or Ottawa suburb.” This is an impossibility. Section 32 of the Mining Act prohibits the prospecting and staking on the part of a lot where there is a dwelling, cemetery, public building, garden, orchard or crops that may be damaged. Prospecting can only occur in these areas with the consent of the surface rights holder.

If exploration damages a property, as it sometimes can, the Mining Act provides for a process of compensation. The surface rights holder can make an application to the Mining and Lands Commissioner who may award compensation. According to an Ontario Ministry of Northern Development & Mines (MNDM) publication there have been only 14 applications filed in Ontario over the last 10 years.

Another fact that was omitted from Campbell’s article, is that, in its early stages, exploration is usually non-intrusive. Exploration techniques such as airborne geophysical surveying, ground geophysical surveying, mapping and prospecting can be done without leaving a mark on the ground. In addition, few properties advance beyond early exploration to the drilling stage. Statistics released by MNDM suggest that only one in 10 projects is worthy of drilling, and of those drill-tested projects, only one in 1,000 ever becomes a mine.

Despite all of these points, Campbell’s article does have some merit. As an industry, we have problems that must be addressed. I, however, do not think the problems are a result of the Mining Act or the “free miners” concept, as she contends.

In many cases land disputes arise because mining companies fail to communicate with other stakeholders. By not doing so they seem to be heavy-handed, corporate bullies, and public opinion can be swayed by an opposing view. Only by providing transparency and establishing effective dialogue can a company overcome misconceptions about its intentions. If the industry as a whole were united in this objective, we would most certainly provide less opportunity for criticism.