File No. MA-O17-02

M. Orr
Deputy Mining and Lands Commissioner

Friday, the 23rd day of August, 2002.

The Mining Act

In the matter of

Mining Claim SO-1246263, situate in the Township of Bedford, in the Southern Ontario Mining Division, recorded in the name of Graphite Mountain Inc., (hereinafter referred to as the "Mining Claim");

And in the matter of

An application for leave of the Commissioner to file a dispute, pursuant to clause 48(5)(c)(i) and (ii) of the Mining Act;

And in the matter of

An Order of the Commissioner pursuant to subsection 110(2) of the Mining Act.

Between:

Tracey L. Griesbach
Applicant

and

Graphite Mountain Inc.
Respondent

Order

  1. This tribunal orders that this application be and is hereby dismissed.

This tribunal further advises that pursuant to subsection 129(4) of the Mining Act, as amended, a copy of this Order shall be forwarded by this tribunal to the Provincial Mining Recorder who is hereby directed to amend the records in the Provincial Recording Office as necessary and in accordance with the aforementioned subsection 129(4).

Reasons for this Order are attached.

Dated this 23rd day of August, 2002.

Original signed by:
M. Orr
Deputy Mining and Lands Commissioner

File No. MA-O17-02

M. Orr
Deputy Mining and Lands Commissioner

Friday, the 23rd day of August, 2002.

The Mining Act

In the matter of

Mining Claim SO-1246263, situate in the Township of Bedford, in the Southern Ontario Mining Division, recorded in the name of Graphite Mountain Inc., (hereinafter referred to as the "Mining Claim");

And In the matter of

An application for leave of the Commissioner to file a dispute, pursuant to clause 48(5)(c)(i) and (ii) of the Mining Act;

And In the matter of

An Order of the Commissioner pursuant to subsection 110(2) of the Mining Act.

Between:

Tracey L. Griesbach
Applicant

and

Graphite Mountain Inc.
Respondent

Reasons

Appearances:

Mr. Peter Griesbach, on behalf of the Applicant

Michael Armstrong, Q.C., on behalf of the Respondent

The hearing was conducted in the tribunal's courtroom in Toronto on July 23, 2002.

Background

This matter came to the tribunal as the result of a request for leave to appeal filed by the applicant on April 25, 2002. Mining Claim 80-1246263 was (and still is), the subject of a hearing before the Provincial Mining Recorder. The applicant had initially filed a first dispute with the Provincial Mining Recorder questioning the sufficiency and validity of the actual staking of the aforementioned mining claim. The dispute was dismissed on May 1, 2001. In considering the issues under subsection 32(1) of the Mining Act, questions were raised with respect to the lands that actually came open for staking as a result of forfeiture. The applicant is the owner of surface rights to lands located on the same lot and concession as the mining claim. The applicant questioned the root of title to Mining Claim 80-1246263 (and its validity) alleging that the forfeiture proceedings which ended in January 1951, opened only 100 acres of Lot 13, Concession 5. Lot 13 measures over 200 acres in size. On January 7, 2002, by Order, the Provincial Mining Recorder allowed a temporary interruption to the proceedings while the applicant sought leave of this tribunal to adjudicate on certain questions posed with respect to the forfeiture of the mining rights in 1951. This tribunal granted leave on May 2, 2002. Following the granting of mleave, the tribunal set a hearing date and in doing so, posed certain questions for adjudication. The main issue was, "[i]s Mining Claim SO-1246263 invalid, in whole or in part, considering that the Certificate of Forfeiture and Notice of Forfeiture in the Ontario Gazette in 1951 refers to 100 acres? Lot 13, Concession V, Township of Bedford and the aforementioned parcel contains 222 acres, more or less." Five questions then flowed from this issue. They were:

  1. If the Certificate of Forfeiture is held to be valid, is it with respect to the whole 222 acres, more or less, or limited to the 100 acres set out [in the Certificate]?
  2. If the Certificate of Forfeiture is valid with respect to only 100 acres, can the location of the 100 acres be determined?
  3. If, with respect to Mining Claim SO-1246263, only 100 acres are held to be validly open to staking, what is the impact on the other lands contained within the aforementioned Mining Claim, namely all of Lots 11 and 12, Concession V?
  4. Does Section 106 of The Mining Act apply to the determination by the tribunal of any of the questions raised in paragraphs 1 through 4, above? What is tribunal's authority to determine these questions?
  5. What, if any, mining rights have been acquired by Mrs. Tracey Griesbach?

Evidence

The Parties submitted an agreed statement of facts prior to the hearing. At the hearing itself, the applicant through her agent proposed to submit other evidence, some of which was accepted by this tribunal. The respondent provided a book of documents. The tribunal also asked for copies of the Provincial Mining Recorder's decisions and orders to be filed as well as copies of old instruments relating to the mineral rights for Lot 13, Concession 5.

Some of the evidentiary highlights are as follows.

Pages 1 and 2 of the abstract index for Lot 13, Concession 5, Township of Bedford. (There were a number of entries dealing with the granting of mineral rights. Copies of instruments associated with those entries were made exhibits at the hearing.)

Instrument being a Crown Patent to the west half of Lot 13, Concession 5, in the Township of Bedford which was granted to James Foley on August 28th, 1861. The patent described the area of the parcel as 100 acres "more or less". As the applicant pointed out, the grant reserved mines of gold and silver to the Crown.

Instrument being a Crown Patent to the east half of the same Lot 13 which was granted to James Nicholson on December 27th, 1888. This patent described the acreage for this parcel as 100 acres "more or less". As the applicant pointed out, there was no reservation of mines or minerals in this grant.

An "Index Card" supplied by the Ministry of Northern Development and Mines and relating to the east half and west half of Lot 13, Concession 5, Bedford Township, had on it the following; headings along one line being "Patentee", "Parcel No.". "Area Acres" and along another line "Date of Patent", "Reference No." and "Annual Tax". Certain notations were made on this card as follows; for the space marked "Patentee", two names were found - James Foley as patentee west half August 28th, 1861; James Nicholson as patentee east half December 27th, 1888; the Foley patent was identified as 4064 SLS; the Nicholson patent was identified as 35441 SLS. In the space marked "Area Acres" could be seen the number 100 which had been crossed out and the number 200 placed above it. The "Annual Tax" space had $10.00 noted. The card had the following information typed on the bottom half; "Severance; Search by F. Challoner,October 27, 1948; Broady, let ret, not known; Dodge, let ret, not known; 1/4 int. Harry W. Broady, Stockholm, Sweden; ¾ int. Frank E. Smith, Prescott, Ontario". A hand written notation saying "W 1/2 Edwin G. Dodge, "unreadable" N.Y. N.B. "unreadable" of Dodge ignored in Smith-Broady conveyance". A notation had been stamped or typed in capital letters on the top of the card to say "Forfeited Jan. 1st 1951 ".

A Certificate of Forfeiture issued by the Department of Mines under The Mining Tax Acton January 15, 1951, listing among others, the mining rights for Lot 13, Concession 5, Bedford Township, notes that the "Area" for each half was 50 acres. The Certificate also refers to the aforementioned patent numbers for each half of Lot 13.

Government notice under The Mining Tax Act (Lands to be Forfeited for Arrears of Taxes) posted in the Gazette for May 6, 1950 and pertaining to the Mining Rights for Lot 13 and noting the "Area" as 100 acres. This notice also says the amount owing is $25.00. The Gazette for May 5, 1951, which lists the lands open for staking on June 1, 1951, notes that the "Area" for Lot 13 is 100 acres. Both notices refer to "mining rights" for Lot 13.

A document entitled "Forfeiture Notice" with the notation "From MNR Land File 82477" read "Take notice that the undermentioned parcel(s) of land or mining rights was (were) forfeited to the Crown under the provisions of Section 20 of the Mining Tax Act and Amendments on the 1st day of January 1951 and the property is now vested in the Crown. Certificate of Forfeiture wasregistered on January 30, 1951. Under the headings "Parcel No.", "Description", "Township", "Acreage" and "Amt due" was the following "Mining Rights lot 13, con. 5, Bedford 200.0 $25.00". The entry had been typed with the exception of the number "2" in "200.0", which had been written by hand. Reference was made to the parcels 4064 SLS and 35441 SLS with a large check mark across the notice. A notation had been made connecting lines to the "200.0" and the parcel numbers (with a circle around the "200.0") saying "Not in same ink".

The applicant is the owner of certain lands (purchased in 1999), some of which are located on Lot 13.

The applicant produced a letter from a surveyor that said the total acreage for Lot 13, Concession 5 was 233 acres, including "waters". The surveyor was not present to testify as to his calculation. The respondent questioned the evidentiary weight of the letter. The tribunal noted the applicant described Lot 13 as having 222 acres and sometimes 220 acres in correspondence supplied to the tribunal.

Instruments detailing the mining rights were requested by the tribunal and made exhibits at the hearing. The mining rights for Lot 13 were described as being for the east half, the west half or the entire lot and measured 100 acres "more or less" for each half. On one occasion, Lot 13 when mentioned in conjunction with Lot 14, was said to contain 480 acres for the two of them. On two occasions, the instrument dealing with the mineral rights to Lot 13 did not even mention acreage.

Applicant's argument

The applicant began by attempting to argue that the main issue (for the applicant at least) was one of property rights and trespass. The applicant was reminded that the hearing had been called to decide certain questions. The applicant argued that the Gazette gave notice to say that taxes had been outstanding on 100 acres; that forfeiture had only affected 100 acres and that only 100 acres of Lot 13 had come open for staking in January 1951. The applicant interpreted section 20 of The Mining Tax Act in such a way that what one saw in the Gazette notices (in terms of acreage) was what one could expect came open for staking after forfeiture. Subsection 20(4) of that Act talks about the registration of the certification that takes place as a result of the taxes not being paid for 2 years. The applicant directed the tribunal's attention to the words "absolute" and "conclusive" in that section saying that the contents of the Gazette as they related to acreage could not be attacked. Neither could one go through the "title documentation". One was "stuck" with what was in the forfeiture notices. The applicant took the tribunal through what was described as a "very public" three-phase process. First, the government finds taxes outstanding. Here, the applicant highlighted that part of the Gazette entry which set out the amount of money owing claiming that if one were to calculate the taxes according to the Act, then one could only conclude that the amount of money owing was based on 100 acres.

The applicant pointed to other entries in the Gazette that had various amounts listed as taxes owing. The second phase for the applicant was the Notice of Forfeiture which again made reference to 100 acres. The applicant argued that the abstract index for the Lot could not be trusted and that the entries were confusing. Anything could be registered. The applicant pointed out that the Crown was not present to say that the 100 acres was the result of an administrative error. The applicant also raised the question if only 100 acres of the 200 acres came open for staking, then where were those 100 acres located? Given the detail of other entries in the Gazette, it was the applicant's view that if all of Lot 13 was being taxed, then the Gazette entry would have reflected this detail. Likewise, if only one of the halves of the lot was being taxed, then the Gazette entry would have said this also. This left the applicant wondering what part of the 200 +/- acres was being forfeited and subsequently, what part had come open for staking. The applicant was adamant that only 100 acres had come open for staking and relied on section 20(4) to say that the entry in the Gazette could not be attacked but had to be accepted. Upon being asked to address the questions posed for this tribunal to answer, the applicant's response was for question number one, the Certificate of Forfeiture was valid but only for the 100 acres; for question two, it could not be determined and one could not know if it meant the east, west, north or south half; the third question was not answered; the fourth question, the applicant described this as a grey area as the 100 acres could not be found. The applicant wondered if this had anything to do with mining rights.

In conclusion, the applicant asked for two orders from the tribunal; the first being that the boundaries of the staked claim be reduced to exclude Lot 13, Concession 5; the second being to withdraw the lot from staking until the Ministry could identify where the 100 acres which came open in 1951 was located or alternatively, could prove that the forfeiture and opening was valid for all of Lot 13, Concession 5. The applicant also indicated that the Respondent Graphite could have gone to the Ministry who in turn could have gone to the affected property owners.

Respondent's argument

The respondent began with the reference to historical events and the point where on July 1, 1867, all minerals and lands became provincial property unless someone had a prior claim. The province issued letters patent by concession lots in each township. If the province did not withhold the mineral rights, then the owner was free to grant them away. Lots ideally measured 200 acres in size when they were originally laid out. The words "more or less" are a term of art. Depending on the axis, standard conveyances were described as being the west half or the east half. The lands in question started off as two halves. The mineral rights were later "spun off' and were taxable under The Mining Tax Act. A failure to pay taxes resulted in the Ministry's search and notification efforts. Section 20 the Act sets out the recipients of notices of arrears. In this case, the notification made reference to the original patent numbers and each patent shows that each half consists of 100 acres, not 50 acres, which the respondent termed a "blunder". The back page of the Certificate of Forfeiture shows that it was registered as required by section 20. The Respondent argued that the entire lot was being referred to and this was a consistent factor throughout the documentation. Despite the "mistakes" with respect to acreage, the Respondent argued that there had always been a consistent reference to both halves of Lot 13, i.e., the entire lot when dealing with the mineral rights.

With respect to the five questions, the Respondent answered that the Certificate of Forfeiture was valid for purposes of the entire Lot; the second question was not applicable; for the third question, there was no impact; for the fourth question, the tribunal had full jurisdiction to answer all questions; and regarding the fifth question, unless she had received an option, the applicant had no mining rights.

Findings

The Mining Tax Act, R.S.O. 1950, Chapter 237, provided for the payment of "several taxes" to the Crown. Some taxes were based on profits; some were based on acreage. [ss. 2, 14]. Under the Act, mining rights that had been severed from or held apart or separate from surface rights were subject to an acreage tax. The Act defines "mining rights" as " [including] ores, mines, minerals and mineral rights of every kind". [s. l(e)] Under the Act, the Mining Court (a predecessor to this tribunal), along with the Ontario Municipal Board, could be called upon by the Minister to hear questions or disputes on the issue of liability to pay tax. Also, under section 20 of the Act, mining rights were subject to forfeiture for failure to pay taxes for two years or more. In order for forfeiture and vesting in the Crown to happen legally, certain legislative steps had to be taken. The process called for the Deputy Minister of Mines to have a list prepared showing mining rights were in arrears for two years or more. It also required the Ministry to notify the owners of the property default that failure to pay the arrears and penalties would lead to a forfeiture and vesting of the property in the Crown the following January. The aforementioned list was published in the Gazette. After the time prescribed in the Act, the Minister issued a Certificate of Forfeiture declaring the mining rights vested in the Crown. This had the effect of canceling or annulling the patent, lease or other title and the vesting in the Crown took place free and "discharged from every estate, right, title, interest, claim or demand therein or thereto, whether existing, arising or accruing before or after such forfeiture is declared... ." The Certificate was registered in the registry office, and The Registry Act ceased to apply to the forfeited property as it had vested in the Crown. The forfeited lands (mining rights) then came open for staking on the following first of June. [s. 20]

In this case, the mining rights for the west half of Lot 13, Concession 5, were severed from the surface rights and sold in 1877. This fact was not disputed and the tribunal is relying on entries in the abstract index for this finding. It also appears from the abstract index that the mineral rights for the entire Lot were sold in the early 1900's, possibly ignoring the earlier sale of the west half. While this later occurrence is curious, the tribunal is of the view that it has no bearing on the issues or decision in this case. As a matter of interest, the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, ss. 16 and 19 say that for those conveyances or instruments executed on or after July 1, 1916, the meaning of "mining rights" is, "the ores, mines and minerals on or under the land, together with such right of access for the purpose of winning the ores, mines and minerals as is incidental to a grant of ores, mines and minerals." the Public Lands Act, R.S.O. 1990, c. P. 43, Section 61, says "In the case of land patented before the 6th day of May, 1913, the mines and minerals therein shall be deemed to have passed to the patentee by the letters patent, and every reservation thereof contained in the letter patent or by statute is void ". The applicant argued that the entries in the abstract index could not be trusted; however, the tribunal did not find them confusing and can find no reason not to trust them for the purpose of understanding the acreage associated with the mining rights for Lot 13. The entries are consistent with the instruments and the instruments are consistent with each other in their description of the acreage for the mining rights granted with respect to Lot 13. In every instance, the mining rights are described as either pertaining to half of the Lot or the entire Lot. Each half is described as having 100 acres more or less. This puts the size of Lot 13 at 200 acres more or less. While the evidentiary weight of the surveyor's letter is light, it does provide an additional reason to believe that Lot 13 measures at least 200 acres and probably more. The tribunal therefore finds that the area of mining rights for Lot 13, Concession 5, matched the size of the Lot itself. Furthermore, there is no indication that the acreage associated with the mining rights had been diminished (by law or otherwise) prior to the forfeiture proceedings taking place.

"Mining rights" is a defined term in The Mining Tax Act and "includes ores, mines, minerals and mineral rights of every kind". [s. I(e)] Interpreting the Act (as it pertains to the property subjected to tax), and applying the findings with respect to the size of Lot 13 and the grants of mineral rights set out in the abstract index, the tribunal is satisfied that the Lot's entire acreage would have been subject to "acreage tax". Conversely, the tribunal can find nothing in the Act to say that where the mining rights have been severed from the surface rights there is any sort of exemption that would reduce the acreage liable to tax.

Do the acreage values in the Gazette or in the Certificate of Forfeiture change anything in terms of acreage that was subject to tax and potential forfeiture? The tribunal would answer "no". The tribunal is of the view that these entries cannot be used to change the size of the lot or the mining rights that were conveyed from time to time. Notification by way of the Certificate of Forfeiture and the Gazette is simply a step in the procedure culminating in forfeiture and vesting in the Crown. The tribunal finds that the Gazette entries are errors as they pertain to acreage. The entries themselves are not determinative of what was actually forfeited and vested in the Crown. In other words, neither the Gazette nor the Certificate of Forfeiture works to change the fact that the mining rights for the entire Lot were subject to tax and potential forfeiture/vesting. The applicant pointed to s. 20(4) of The Mining Tax Act to support the argument that the certificate was "absolute and conclusive evidence" of the amount of land actually forfeited. Exhibit #14, tab 11, (correspondence between the Ministry and the applicant) also referred to The Mining Amendment Act, 8.0.1959, c. 60, s. 15, to say that forfeiture affected the entire lot. The tribunal does not believe that either of these sections actually applies to a situation where the issue lies with the contents of the forfeiture documents, as opposed to the validity of the forfeiture itself. In the event that the tribunal's interpretation of these sections is too narrow, then these sections would operate to validate an error such as the one found in this case.

The tribunal finds therefore, that Lot 13 in its entirety, came open for staking in 1951.

The applicant also alleged that she owned part of the mining rights since only part of the Lot had been forfeited. The tribunal does not agree. Since the mining rights for the entire lot vested in the Crown earlier, they could not be conveyed to the applicant when she purchased her land in 1999. They were Crown lands and available for staking under the Mining Act.

Application of section 106 to the determination by the tribunal

Section 106 of the Mining Act says:

  1. The Commissioner has no power or authority to declare forfeited or void or to cancel or annul any Crown patent issued for lands, mining land, mining claims or mining rights, but every action and every proceeding to declare forfeited or void or to cancel or annul any such Crown patent may be brought or taken in the Ontario Court (General Division).
  2. Subsection (1) does not apply to cancellations or forfeitures provided for in this Act or in the patent.

The tribunal finds that section 106 has no application to the facts of this case. The "Commissioner" (the tribunal) is not being asked to make any declaration with respect to a Crown patent. The applicant's argument (which has nothing to do with patents), is that the lands recently staked by the respondent were not open in their entirety; that only an unknown part of the lands were open to staking and that the opened part should be determined before the respondent be allowed to stake. In any event, the forfeiture in question happened as a result of events governed by The Mining Tax Act and not the Mining Act.

The tribunal takes its jurisdiction from section 105 of the Mining Act. The Act describes where a licensee may prospect for minerals in Section 27. That section says:

  1. Except where otherwise provided, the holder of a prospector's licence may prospect for minerals and stake out a mining claim on any, (a) Crown lands, surveyed or unsurveyed;

The tribunal is satisfied that it has the jurisdiction to determine whether the subject lands were in fact open to staking in their entirety in accordance with the Act. The Provincial Mining Recorder has already ruled on the validity of the staking (ruling it valid) and this application constitutes an appeal from that decision on the basis that not all of the staked lands were actually open to staking. Neither is this a case where the Minister's handling of the forfeiture procedure is being attacked in any way. Indeed, the applicant considers the forfeiture valid but only with respect to 100 acres. The issue really hinges on the fact that an entry relating to acreage of the mining rights in two of the documents associated with the forfeiture procedure (the Certificate and the Gazette) is at odds with the acreage set out in the actual deeds conveying the mining rights. In this case, the tribunal is faced with the task of determining if all of Lot 13 fell into the category of "Crown" lands" under the Mining Act. For the reasons given above, the tribunal is satisfied that Lot 13 in its entirety did vest in the Crown after forfeiture under The Mining Tax Act.

In answer to the questions posed for this hearing the tribunal gives the following:

  1. The Certificate of Forfeiture is held to apply to the entire Lot. The mining claim was therefore staked on lands (Lot 13, Concession 5, Bedford Township) that had vested in the Crown and were Crown lands for purposes of the Mining Act. Entries in the Certificate of Forfeiture and Gazettes with respect to the acreage for the mining rights for Lot 13, Concession 5, being errors, are not determinative of the actual acreage that was subject to tax and potential forfeiture.
  2. Not answered, given the answer to question one.
  3. Not answered, given the answer to question one.
  4. This not being a "patent" matter, Section 106 has no application and the tribunal takes its authority to hear appeals from decisions of the mining recorder and relating to whether lands were open for staking from section 105.
  5. No mining rights were acquired by the applicant Griesbach as the mining rights had vested in the Crown prior to the conveyance to Griesbach.

Conclusions

For the reasons noted, this application be and is hereby dismissed.

At the hearing, the Respondent requested that in the event that this application was dismissed, that its costs be considered.

The Respondent is hereby requested to file its submission on costs with the tribunal with a copy to be filed with the applicant on or before September 16, 2002. The applicant is hereby requested to file a response to the respondent's submission with the tribunal and the respondent on or before September 27, 2002.