On February 24, 2016, the Ontario Court of Appeal released its
decision in 2274659 Ontario Inc. v. Canada Chrome
Corporation, confirming the interpretation of sections 50 and
51 of the Ontario Mining Act (Act) as they relate to surface rights
in a mining claim. The Court of Appeal held that surface rights in
unpatented mining claims are restricted to prospecting and
development of mines, minerals and mining rights on the claims
themselves, and that claims cannot be staked to protect
transportation corridors or to prevent competitors from accessing
other mining interests.
At the heart of the dispute between the parties was the desire
by each to build a transportation link to chromite deposits in the
"Ring of Fire" in northern Ontario. The respondent,
2274659 Ontario Inc. (227), wished to build a road from the CN
Railway at Cavell, Ontario to its mining interests in the Ring of
Fire, 340 kilometers to the north. However, the appellant, Canada
Chrome Corporation (CCC), had, in 2009, staked over 200 unpatented
mining claims in a linear fashion along the 340 kilometre corridor
(CCC Claims), to a location near a mineral deposit in which it had
a minority interest. The route of 227's proposed road would
cross some of the CCC Claims, and CCC had refused to grant 227
consent to an easement to surface rights on the claims. An
application to dispense with CCC's consent was therefore
initially brought before the Ontario Mining and Lands Commissioner
(MLC), under section 51(4) of the Mining Act (as that provision
existed at the time, prior to the coming into force of certain
The application turned on the interpretation of sections 50 and
51 of the Act. Subsections 50(1) and (2) of the Act set out the
rights attached to a mining claim, as defined in the Act. Under
section 50(1), staking a claim confers only the right to perform
the assessment work prescribed by the Act or to obtain a lease from
the Crown. Subsection 50(2) deals with the extent of the mining
claim holder's right to use the surface, and permits the holder
to enter and use the part or parts of the surface of land that are
"necessary" for the purpose of prospecting and
development of the mines, minerals and mining rights
"therein". Subsection 51(1) deals with the priority of
the holder of an "unpatented mining claim" to use the
surface rights for prospecting and the efficient exploration,
development and operation of the mines, minerals and mining
The MLC dismissed the application to dispense with
CCC's consent, and 227 appealed the MLC's decision
to the Divisional Court. The Divisional Court allowed 227's
appeal. In its decision dated July 30, 2014, the
Divisional Court held that section 51(1) of the Act does not confer
additional surface rights, beyond what is conferred in section
50(2) of the Act, on those who hold unpatented mining claims on
Crown lands, but rather section 51(1) confers priority to the
unpatented mining claim holder only to use those limited surface
rights that were accorded by section 50(2). Rather than remit the
matter to the MLC, the Divisional Court made an order dispensing
with CCC's consent. CCC sought and was granted leave to appeal
the decision to the Court of Appeal.
Chief Justice of Ontario G. Strathy, writing for the Court of
Appeal, dismissed CCC's appeal. The Court of Appeal agreed that
the interpretation of sections 50(2) and 51(1) by the Divisional
Court was the only reasonable one. The Court of Appeal found that
the limited priority conferred by section 51 of the Act protects
the multiple use of Crown lands through the dispute resolution
procedure contained in section 51(4) and following (now s. 51(2)
and following). It held, "The priority is for the purpose of
prospecting and exploring and developing mines, minerals and mining
rights. Section 51(1) does not confer additional surface rights
beyond those conferred by s. 50(2)."
The Court of Appeal found that the Divisional Court was correct
to hold that it was unreasonable for the MLC to have considered
whether the proposed easement to build a road would interfere with
CCC's plan to build a railway because CCC could not claim
priority for a railway under section 51(1) of the Mining Act. The
Court of Appeal went on to hold, that "the only reasonable
interpretation of the Act is to read it as meaning that a proposed
railway is not a 'mine'. The surface rights of the holder
are limited to the parts necessary for prospecting, exploration and
mining 'therein' – that is, in the claims themselves,
not in claims at a distant location."
The decision of the Court of Appeal brings welcome guidance and
clarity to the scope of an unpatented mining claim holder's
Blakes acted for 2274659 Ontario Inc. before the Divisional
Court and the Court of Appeal.
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