Thank you for the…

Thank you for the opportunity to comment on the proposed sale of Crown land in Northern Ontario for agricultural purposes.

The Environmental Registry of Ontario posting 019-1468 notes that there has been an increased demand for Crown land for agricultural use in Northern Ontario. The posting also notes that the Province has undertaken the Northern Livestock Pilot, and is now proposing to amend the land use direction in the Crown Land Use Policy Atlas for five land use areas. The amendment would permit the disposition of Crown land for agriculture in those areas.

The Environmental Registry posting further notes that decisions on specific requests for land for agricultural use would be:
• made following an evaluation and assessment of potential environmental affects using MNRF’s Class Environmental Assessment for Resource Stewardship and Facility Development Projects; and
• be in accordance with the Guide to Acquisition of Crown Land for Agriculture.

I support the change to the Crown Land Use Policy Atlas. At the same time, I would like to point out some shortcomings with the evaluation and disposition process outlined above. These shortcomings should be addressed, and the evaluation process updated before any applications to purchase Crown land in the areas of interest are accepted.

The guidance provided by MNRF’s Class Environmental Assessment for Resource Stewardship and Facility Development Projects is available on-line at: https://www.ontario.ca/page/class-ea-resource-stewardship-and-facility-…. The MNRF Guide to Acquisition of Crown Land for Agriculture is available on-line at https://www.ontario.ca/page/applicants-guide-applying-crown-land-agricu…. Neither document deals with the shortcomings mentioned above.

Guidance that does address the shortcomings is available in MNRF’s Crown Land Use Planning Manual, available on-line at: https://www.ontario.ca/page/guide-crown-land-use-planning.

Section 2.1 of the Crown Land Use Planning Manual notes that the Ministry of Natural Resources and Forestry (MNRF) has the lead role for the care and management of Ontario’s Crown land and water. It goes on, however, to say that other ministries have a significant role in the management of Crown land and water.

One Ministry cited is the Ministry of Northern Development and Mines, now the Ministry of Energy, Northern Development and Mines (ENDM). Although MNRF has responsibility for the Crown surface rights in the province through the Public Lands Act, ENDM has responsibility for Crown mining rights in Ontario through the Mining Act.

Section 1 of the Guide to Acquisition of Crown Land for Agriculture directs applicants to contact ENDM early in the process to determine whether there are mineral development interests on the proposed agricultural lands.

If the Crown has issued pre-existing mining rights (i.e., mining claims) on the proposed agricultural land, the owner of the mining rights has the first to the use of the surface, and the surface rights cannot be sold without the permission of the owner of the mining rights.

Be aware, however, that the status of mining lands can change daily. Even if there are no mineral development interests on the proposed agricultural lands at the beginning of the acquisition process, there is no guarantee that claims will not be staked during the application process. MNRF must engage with ENDM well before there is a pending disposition of the Crown land to ensure that claims cannot be staked where Crown surface rights may be sold.

A process for ensuring that such adverse alienations do not occur, called ‘interim protection’ is described in Section 10.0 of the Crown Land Use Planning Manual. The guide specifically states: “Interim protection is also applied in conjunction with land management activities, such as considering proposals for the disposition of lands.”

The process whereby MNRF can ask ENDM to withdraw an area from staking is outlined in MNRF procedure PL 3.03.03, Withdrawal and Reopening of Surface and /or Mining Rights – Section 35, Mining Act. It is available on-line at: https://www.ontario.ca/page/withdrawal-and-reopening-surface-andor-mini…. The ‘interim protection’ process should be incorporated into the Guide to Acquisition of Crown Land for Agriculture. This will protect the interests of the agricultural proponents and those holding mining land tenure, and help ensure that previous commitments made by the province are not contravened.

Note that withdrawals requested by MNRF are normally for surface rights only (vs. surface and mining rights) when a pending disposition is being considered. The mining rights are reserved to the Crown in such cases. Withdrawals for both surface and mining rights are normally requested when an area is a candidate for protected area status.

When withdrawals are requested, ENDM checks other matters as well as the status of mining land tenure in the area of interest. The ministry checks to determine whether there are recorded mining-related hazards are present in the area, in an effort to ensure the health and safety of proponents seeking to acquire Crown land. In addition, it reviews the geology and exploration history of the area to determine whether it has significant mineral potential. A withdrawal of surface rights, or of the surface and mining rights, might constrain the future development of the province’s mineral endowment if the area has had long-standing exploration activity, or has significant mineral potential.

Guidance on how to balance competing interests such as agriculture and mineral development is outlined in the Provincial Policy Statement (PPS), available on-line at: https://www.ontario.ca/page/provincial-policy-statement-2020. Although the PPS does not explicitly apply to Crown land, the Crown Land Use Planning Manual refers to the PPS in several places. It also notes that the PPS provides a reflection of government interests that MNRF will consider in carrying out its work.

Finally, the Guide to Acquisition of Crown Land for Agriculture speaks to environmental planning that will consider the potential impacts of specific dispositions of Crown land on other users of Crown land. This is consistent with the statement in the Environmental Registry posting that “direct notification is being issued to local stakeholders such as stakeholder committees and interest groups, parties believed to be potentially affected, and others known to have a specific interest in the issue”.

Past experience in other parts of Ontario has shown that direct notifications are generally issued to the owners of surface rights near an area of interest if their holdings and activities might be affected changes in land use designations. Direct notifications are also sent to interest groups including cottagers’ associations, hunting and fishing organizations, and municipal councils in the area.

That same experience, however, has shown that direct notifications are commonly not sent to the owners of mining rights in the area of interest, or groups such as prospectors’ associations. They, too, should receive direct notices, especially since corporate claimholders have legal fiduciary obligations to their shareholders and to securities commissions that may be triggered by a nearby disposition of Crown land.

I trust that you will recognize the logic in updating the evaluation process before any applications to purchase Crown land are accepted. Updating the evaluation process will help safeguard the interests of agricultural proponents, the mineral sector, and the Province of Ontario. It will also ensure that established provincial guidelines are followed throughout the disposition process.