Ministry of Natural Resources Ontario Subject APPLICATION REVIEW AND LAND DISPOSITION PROCESS Compiled by - Branch Lands & Waters Replaces Directive Same Section Land Management Number Same Procedure Dated February 6, 2003 1 of 26 1.0 DEFINITIONS In this procedure and in the Application Review Guide and Summary, "application" includes a letter or written request that sufficiently identifies the land requested and the applicant, and/or a completed Application for Crown Land (Form 830) "hydrocarbon pipelines " means a pipeline project that has been approved by the National Energy Board or the Ontario Energy Board. 2.0 PROGRAM GUIDELINES 2.1 Purpose To provide procedural guidelines to implement Policy Directive. 2.2 Procedural Flexibility A high degree of flexibility may be used to suit case specific requirements. 3.0 PROCEDURE This directive establishes the procedure to be followed when dealing with applications for the disposition of property (e.g. freehold or leasehold title) or personal rights (e.g. land use permit) under the Public Lands Act. The electronic form "Application Review Guide and Summary" is to be used when processing applications for the disposition of public lands and a paper copy is to be retained on file. While this procedure and the Application Review Guide and Summary identify a number of sequential steps, many of these steps may be undertaken simultaneously. A model showing the integration of this procedure and its accompanying policy with other MNR policies and processes, is included as Appendix "A". Explanatory notes related to the items in the review guide and in this procedure are contained in section 4 of this directive.
2 of 27 3.1 Pre-Screening Actions Complete Parts A and B of the electronic form Application Review Guide and Summary for all dispositions of public land and undertake the actions specified in the guide. Part A contains summary information related to the applicant and the site being applied for. In addition, this part contains critical information with respect to the determination of priority rights that may need to be determined between the subject application and the rights of a prospector staking a claim in accordance with the provisions of the Mining Act. Part B of the review guide relates to the availability of the application, notification to MNDM's Provincial Recording Office in respect of the application, the need to withdraw surface and/or mining rights under the Mining Act, and other administrative actions. 3.2 Consultation with Aboriginal Communities Assuming that there are existing aboriginal or treaty rights that will be infringed by a proposed disposition and that the duty to consult is triggered, consultation efforts will vary with the nature of the disposition, as well as with the nature and scope of the rights at issue. Information dissemination and information gathering are at the core of the consultation obligation. Consultation is intended to result in a respectful and timely exchange of relevant information between the parties. The goal of consultation is to eliminate or minimize infringement. Consultation must be meaningful in that it is conducted with the intent of substantially addressing the concerns of First Nations where possible (i.e., consultation will not be considered meaningful if a final decision has already been made). Where a local agreement or understanding exists with an aboriginal community with respect to consultation, that is the process to be followed with that aboriginal community, if appropriate. In cases where a disposition may infringe on the rights of several aboriginal communities, each of the aboriginal communities should be consulted. In the absence of a local agreement or understanding, a consultation strategy that is flexible and suits the particular needs of individual aboriginal communities should be devised. The following are among the elements of the consultation process: sharing information about the proposed disposition (i.e. description of lands involved, purpose of the disposition, term of the disposition, etc.); obtaining information on the aboriginal or treaty rights of the affected aboriginal community; providing an opportunity to the affected aboriginal community to share information about their rights and their perspective on the impact of the disposition on those rights (i.e., directly invite comment when providing initial information, opportunities for face to face meetings, reasonable timelines for response, MNR contact person, etc.); consideration by the MNR of the information received; and determination by the MNR on how to proceed and notification to the aboriginal community of the Ministry s final determination.
3 of 27 A detailed record should be maintained of the consultation process. This should include: copies of all correspondence with the Aboriginal communities; completion of Part C of the Application Review Guide and Summary; and records of any relevant discussions. Useful contact and related information can be found at the following web sites: Organization Web Site Address Useful Information Provided Ontario Native Affairs Secretariat Indian and Northern Affairs Canada Chiefs of Ontario First Nation Information Project Ontario First Nations Technical Services Corporation http://www.nativeaffairs.jus.gov.o n.ca/ http://www.inac.gc.ca http://www.chiefs-of-ontario.org http://www.aboriginalcanada.com /firstnation http://www.ofntsc.org - Ontario's Aboriginal Policy Framework - Information on land claims - Land Claim fact sheets - Links to web sites pertaining to aboriginal affairs - First Nation profiles - Information on land claims - Treaty information - Agreements - Tribal Council and District Chiefs contact information - First Nation directory for Ontario - Map of Ontario's First Nations - Ontario First Nations and Tribal Council affiliation contact information NOTE: Where there is doubt about the need to consult, or the nature or extent of consultation required in the circumstances, advice should be sought from Legal Services Branch and Native Affairs Unit. 3.3 Environmental Review MNR's environmental assessment requirements are to be met when reviewing applications for public land. These requirements are outlined in "A Class Environmental Assessment for MNR Resource Stewardship and Facility Development Projects" (RSFD) (sections 2.2.13, 2.2.13.1, or 2.6). Part D of the Application Review Guide and Summary is to be completed to document the EA coverage for the proposed activity.
4 of 27 3.4 Issuance of Disposition 3.4.1 Complete Pre-disposition Actions This section outlines critical legal and administrative actions that must be completed before MNR makes a disposition of public land. The District Manager will normally undertake these actions, with full supporting administrative assistance of the Area Team. By mutual agreement between Districts and Land Management Section, for some dispositions these actions may be undertaken by the Central Processing Unit of Land Management Section. i) CFSA Notification Subsection 37 (2) of the Crown Forest Sustainability Act requires that a forest resource licensee be given at least 30 days written notice of the proposed sale, lease, grant or other disposition and gives the licensee an opportunity to make representations to the Minister (see also Explanatory Note 10). This opportunity must be given to the licensee before a decision to complete the disposition is made. Document the notification on Part E of the Application Review Guide and Summary. Where the forest resource licence is a Sustainable Forest Licence, under subsection 37(1) any disposition is subject to provisions of the Sustainable Forest licence. Where the proposed land disposition would result in area being withdrawn from the SFL, the provisions in the SFL also require that the licence be amended. A notice must be sent under Section 34 of the CFSA when the area or wording of the SFL is to be amended. In deciding whether or not to proceed with the disposition, District Managers shall review any concerns expressed by the forest resource licensee. Staff from Wood Allocation and Measurement Section of Industry Relations Branch may be called upon to assist in this review. Not all proposed dispositions on licenced areas require an amendment to the licence. For detailed requirements and procedures to be followed for a proposed disposition of land from the area covered by a forest resource licence see Explanatory Note 10 and Forest Management Procedures dealing with disposition of land and amendments of Forest Resource Licences. ii) Lands Administration Considerations a. Review options for land use occupational authority and determine the most appropriate type to be used (See Appendix B attached hereto, and section 5, Policy Directive LM 4.01.02 entitled Disposition Review Process ). Document the selected option on Part F of the Application Review Guide and Summary. b. If the applicant has not specified that the application is for surface rights only (or that the acquisition is to reserve the mining rights), determine if the mining rights are to be reserved, if they have not been granted previously (see Explanatory Note 5).
5 of 27 c. Determine description/survey requirements. Complete Part G of the Application Review Guide and Summary. d. Consider marketing options and determine type most appropriate for use (See section 4.0 of Policy Directive ). Document the selected option on Part H of the Application Review Guide and Summary. e. Determine permit/licence requirements, if any, including: PLA work permit; LRIA approval; Aggregate Permit; and Crown Forest Sustainability Act. iii) Surplus Property Declaration (Disposition of Acquired Property Only) In the case of acquired properties, responsibility for the disposition of these lands rests with the Ontario Realty Corporation (ORC) where the lands are no longer required for MNR purposes (See Policy and Procedure Directives PL 8.03.01 entitled "Disposition of Surplus Acquired Land."). In this situation, the District Manager or Area Supervisor is to complete a Surplus Property Declaration Form [Form 5 (01/01) and sent it to Land Services Unit. This form is available from Land Management Section's Forms web site: http://documents.mnr.gov.on.ca/document/view.asp?document_id=2275&attachment_id=5824 This does not apply in the case of "interim" or "short term" dispositions being made by land use permit or licence of occupation, so long as the property is not surplus to MNR needs. This is the end of the disposition process for field staff when dealing with acquired property. iv) Central Processing Unit (CPU) Dispositions In certain situations (e.g. the sale of recreation camps, cottage lots or land exchanges) dispositions may, with mutual consent of District Managers and Land Management Section, be handled by the Central Processing Unit. Where this is the case, the District Manager or Area Supervisor is to complete a Surplus Property Declaration Form [Form 5 (01/01) and sent it to Land Services Unit. This form is available from the Land Management Section's "Forms" web page at: http://documents.mnr.gov.on.ca/document/view.asp?document_id=2275&attachment_id=5824 This is the end of the disposition process for field staff when dealing with CPU dispositions.
6 of 27 v) Disposition Recommendation - Reactive or Local Active Marketing Dispositions Having completed the Ministry s aboriginal consultation, environmental review and other pre-disposition actions, the Area Supervisor/CPU will prepare a recommendation for acceptance, acceptance with conditions, or denial of the application, by the Minister or the Minister s delegate (see the Delegation of Authority Manual at Corporate Management Division s intranet website at: http://documents.mnr.gov.on.ca/document/view.asp?document_id=67&attachment_id=8114 ). This recommendation shall consider: a. the existence of aboriginal or treaty rights; b. environmental assessment requirements; c. applicable MNR policies and procedures; d. any representation made by a licensee under the Crown Forest Sustainability Act; e. the Ministry s Statement of Environmental Values, (i.e., integration of natural, social, cultural and economic factors when making decisions that might significantly affect the environment); f. land use occupational authority to be issued; and g. the pricing principle to be used (i.e., market value or specified administrative fee). If the pricing principle is inconsistent with policy, refer to Policy Directive PL 6.01.03 entitled "Disposition of Land at Less Than Market Value". Indicate the pricing principle on Part I (Pricing Summary) of the Application Review Guide and Summary. vi) Seek ministerial/delegated approval of the recommendation prepared in v) above. The approval of the Minister or the Minister's delegate (delegated authority) must be obtained. Refer to the Delegation of Authority Manual at Corporate Management Division intranet site: http://documents.mnr.gov.on.ca/document/view.asp?document_id=67&attachment_id=8114. 3.4.2 ing i) If the application is approved, the Area Supervisor/CPU will advise the client (with a cc to the Provincial Recording Office) of the Ministry's decision to approve the application. Key elements that the client should be advised of are: a. land use authority to be used; b. rights to be granted (e.g. surface rights only) or reserved (e.g. mining rights, public or colonization roads, etc.); c. effective date of rental period, if applicable; d. pricing principle to be used (i.e., market value, annual rent/fee based on market value, or specified administrative fee) (if available information, in accordance with Policy Directive PL 2.03.01, entitled Appraisal/Evaluations of Public Land allows a determination of the purchase price or annual rent/fee, the applicant may be advised of the evaluation details at this time); e. conditions to be included, if applicable; f. permit/licence requirements;
7 of 27 g. description/survey requirements (if required, authorize survey performance in accordance with Instructions Governing Crown Land Surveys and Plans and request that the applicant submit a letter from his/her licensed surveyor indicating that the preliminary plan and field notes will be submitted to the Ministry for approval within 6 months - see Explanatory Note 11); h. expiry date of offer (See Explanatory Note 12); i. in the case of a corporation, the need to submit a current corporate profile; and j. requirement to confirm acceptance of this offer, in writing, within 30 days, subject to final agreement of the purchase price/annual rental/annual fee if required; failure to do so may result in cancellation of the offer. Complete Part J (Transaction Status) of the Application Review Guide and Summary. ii) If the application is to be denied, proceed to section 3.4.3. - Application Denial. iii) Upon receipt of written confirmation of acceptance of the offer by the applicant, as in i) j. above, evaluate the site in accordance with Policy Directive PL 2.03.01, entitled Appraisal/Evaluations of Public Land. Update Parts I (Pricing Summary) and J (Transaction Status) of the Application Review Guide and Summary. iv) Process the survey plan for approval if required, upon receipt, and obtain description for disposition (see policy and procedure directives PL 2.06.01 entitled Survey Plan Approval ). Update Part G (Survey/Description Status) of the Application Review Guide and Summary. v) Collect purchase price or first year's rent/fee (or partial first year and subsequent year's rent/fee) (See Explanatory Note 13). Update Part I (Pricing Summary) of the Application Review Guide and Summary. vi) Prepare and submit appropriate requisition for title document (including cancellation of existing land use occupational authority, if required) or, issue land use permit locally. (Requisitions and routings are on Land Management Sections intranet website at: http://mnronline.mnr.gov.on.ca/spectrasites/l&w/lm/lmhome.cfm) If authority is to be provided by land use permit, the permit must be generated by the provincial land use permit system. This will ensure that all sites and their exact locations are available for G.I.S. purposes, and reports generated by the program are accurate. vii) If, for any reason the applicant does not fulfil all required obligations to complete the disposition (e.g., refusal to provide written acceptance of offer, non-payment of purchase price or annual rent/fee as appropriate, failure to submit required survey plan, etc.), the application should be denied. In this case, proceed to section 3.3.3 - Application Denial. viii) If applicable, schedule for compliance/building condition inspection and future required actions (e.g. requisition patent if conditional sale previously made; cyclical rent review, etc.).
8 of 27 3.4.3 - Application Denial If a decision is made to deny an application, the Area Supervisor must advise the applicant of the denial, together with clear and relevant reasons for the denial. Where possible, reasons should not be limited to general policy considerations but should include more specific information to assist clients in determining the validity of MNR s position. Upon denial, control maps should be updated to delete reference to the application and MNDM s Provincial Recording Office should be advised so that they may update claim maps. If the surface rights have been withdrawn, MNDM should be advised to reopen the lands to staking. See also Explanatory Note 3. 4.0 EXPLANATORY NOTES This section contains explanatory notes to items referred to in this procedure or in the Application Review Guide and Summary. 1. Application Receipt and Priority (Date/Time Stamping Requirements) Dispositions under the Mining Act and the Public Lands Act (PLA) are based on priority of application. To determine the right of priority in the case of conflict between applications, all applications should be stamped to indicate the exact date and time of receipt. The date and time an application is received is the best evidence in determining the priority between an application under the Public Lands Act and staking under the Mining Act. The time/date stamped application should be sent promptly to the MNDM Provincial Recording Office. Applications for public lands are not in a prescribed form and a letter may serve as an application, if it contains sufficient information to identify the land and the applicant. If additional information is required, an applicant may be asked to fill out an Application for Crown Land, supplemental to any previous application. The application may be accepted at the time of initial enquiry. The receipt of an application does not bind the Ministry and there is no need to wait until the Ministry has decided to proceed with a disposition before receiving the application. A delay in accepting an application may jeopardize the availability of the land, due to the potential creation of prior rights to the surface through the staking of a mining claim. The first right of priority for surface rights is provided to any applicant under the Public Lands Act if: the application meets MNR s requirements for a valid application, and the application is brought in good faith to MNR prior to the commencement of the mining claim. Where a claim predates an application under the Public Lands Act, the claim holder has priority to the surface rights.
9 of 27 See also MNDM Policy UC 306-3 entitled Priority of Rights: Staking Vs. Public Lands Act Applications and Explanatory Notes 3 and 5. http://www.mndm.gov.on.ca/mndm/mines/lands/policies/ucpolicy/uc306-3_e.asp 2. Check Land Status/Other Commitments Upon receipt of an application, the status of the land should be checked using control maps, claim maps and the LIS (Land Index System) to determine if: the site being applied for is unalienated public lands (e.g. is not granted, under LUP or part of conservation reserve, Provincial Park, etc); if the lands are subject to any prior interest (e.g. staked mining claim, valid prior applications, Crown easements etc.); or any other situations that may preclude disposition (e.g. ANSIs, nature reserves, flooding reservations, surface and/or mining rights withdrawals, unauthorized occupations, etc.). Regard should be had to both site specific and general notations on those plans. If the application involves the disposition of all or part of a staked mining claim, it will be necessary for the applicant to obtain the consent of the claim holder in accordance with subsection 51 (2) of the Mining Act, before a disposition of the surface rights may proceed. If the holder of the mining claim does not consent to the disposition, the applicant may request the Minister of Northern Development and Mines to refer the application of the Mining and Lands Commissioner, pursuant to subsection 51 (4) of the Mining Act, and the Commissioner may after a hearing, make an order based on the merits of the application, pursuant to subsection 51 (5). 3. Notify MNDM s Provincial Recording Office The Provincial Recording Office should be notified electronically (i.e., fax or e-mail) as soon as possible on receipt of an application. Notification will: a) preclude the lands under application from subsequently being staked out or recorded under the Mining Act, in respect of an application in which the applicant may obtain the minerals (Authority- Clause 30(1)(b) of the Mining Act and MNDM Policy: UC 306-3 Priority Of Rights: Staking Vs. Public Lands Act Application http://www.mndm.gov.on.ca/mndm/mines/lands/policies/ucpolicy/uc306-3_e.asp b) allow the Provincial Recording Office to note the disposition on claim maps in order to make the exploration community aware of any values in an area that may warrant avoidance, thus pre-empting any possible conflicts or compensation issues in the future. The Provincial Recording Office should also be advised of subsequent actions, such as application denial or withdrawal (so that the lands may again be open for staking), or the granting of land use occupational authority (so that G or M plans can be updated thus ensuring that the mining rights can again be open for staking). See also Explanatory Note 4.
10 of 27 4. Withdrawal of Surface and /or Mining Rights from Disposition/Granting of Mineral Rights It is critical to determine if there is a need to seek a withdrawal of surface and/or mining rights. Failure to withdraw surface and/or mining rights may result in: the inadvertent disposition of rights to lands under the Mining Act, in situations where MNR is planning an active disposition of public lands (as opposed to a reactive disposition in which MNR may rely on clause 30(1)(b) of the Mining Act), which would pre-empt MNR's marketing plans; the staking of a mining claim under the Mining Act, and the establishment of a thirdparty right to the minerals, which may be incompatible with the integrity of a reactive disposition of public lands (i.e., where MNR is reacting to a disposition and has determined that the mining rights should be retained in the Crown e.g. a communications tower site or water power site, where the site should be protected from future disturbances). To preclude this situation from occurring, staff should seek a withdrawal order under section 35 of the Mining Act, unless this action is unnecessary by virtue of clause 30(1)(b) of the Mining Act. (See Policy and Procedure Directives PL 3.03.03 entitled "Withdrawal and Reopening of Surface and/or Mining Rights - Section 35, Mining Act.) Subsection 30(1) of the Mining Act states: No mining claim shall be staked out or recorded on any land, (b) for which an application brought in good faith is pending in the Ministry of Natural Resources under the Public Lands Act or otherwise, and in which the applicant may acquire the minerals; Clause 30(1)(b), eliminates the need to request a withdrawal of the surface and/or mining rights in response to applications if the application may include the minerals. Proof of receipt of the application in advance of the staking of a claim is sufficient to give effect to the section. However, this protection exists only until such time it is determined that the minerals are not to be included. If it is determined at a later date (i.e., following MNR's environmental assessment requirements) that the minerals will not be included, and it is considered necessary to keep the minerals in the Crown to protect the integrity of the site, staff should seek a withdrawal order. Situations where an applicant may acquire the minerals includes applications brought in good faith for, a) an Order in Council to transfer administration and control of ungranted public lands to the federal or provincial Crown or their agencies (section 2, PLA), b) a Ministers Order to transfer administration and control of ungranted public lands under section 37, PLA, c) sale* (i.e. title by letters patent), or d) lease*, provided, i) the application is not expressly requesting the surface rights only, ii) the mining rights have not been previously granted or the land has not been previously staked, and
11 of 27 iii) the mining rights are actually required by the applicant and this issue has been considered as part of MNR's environmental assessment requirements. * Although technically a sale or lease may include the minerals (by not reserving all ores, mines and minerals), this will not normally be the case, unless the absolute necessity for the minerals has been documented. In situations where it is intended to include the minerals with a sale or lease, the Regional Lands Specialist should be consulted. An applicant cannot receive minerals through a land use permit, licence of occupation, Crown easement, or beach management agreement. In these situations, if it is necessary to preclude staking and recording of a claim on or near the land that is the subject of the application, the mining rights must be withdrawn from staking in accordance with Policy and Procedure Directives PL 3.03.03 entitled Withdrawal and Reopening of Surface and/or Mining Rights section 35, Mining Act. See also Explanatory Note 5. 5. Mining Rights Inclusions or Reservations By agreement with the MNDM, where the mining rights for the site of an application pending under the PLA are not held by the holder of an unpatented mining claim, a disposition by sale or lease under the PLA will normally reserve the mining rights, so that those rights may be available for staking and recording under the Mining Act. In cases where the inclusion of mining rights is critical to the integrity of a disposition under the PLA (e.g. construction of a nuclear generating plant) the mining rights should not be reserved (so that the mining rights will pass with the PLA grant). The decision as to whether the disposition of public lands will include the mining rights, is to be made when meeting during MNR's environmental assessment requirements. Under that review, mining rights will not be granted to the private sector, unless compelling reasons exist for doing so. Mining rights will normally be included in situations in transfers of administration and control of public lands to the federal government or other provincial ministries. Mining rights will not normally be included in dispositions to the private sector, unless compelling reasons exist for doing so are identified by the applicant and are supported through the environmental assessment review process. If a decision is made not to include the minerals, it may be necessary to withdraw the mining rights from disposition. For more details, see Explanatory Note 4.
12 of 27 6. Update Control Maps Control maps must be maintained and updated to preclude duplicated commitments for the same site. See section 6.1, Policy Directive entitled. 7. Applicant Eligibility As indicated in Explanatory Note 1, applications under the Public Lands Act are not in a prescribed form and a letter may serve as an application, if it contains sufficient information to identify the land and the applicant. Subject to the applicable sub explanatory notes below (7.1, 7.2 and 7.3), applicants may also direct in whose name land use occupational authority is to be held, notwithstanding that those names are not included in the application. Unincorporated firms or businesses operated as partnerships are not legal entities and cannot hold land. for such businesses must be taken in the name of their proprietors as follows - one or more persons (who are named), carrying on business in partnership under the firm name and style of (name of firm). Individual(s) must be 18 years of age or over to acquire Crown land. In respect of each individual whose name will be included in the land use occupational authority, the applicant must provide: name in full (no initials); complete mailing address; and if applicable, the tenancy to be shared (e.g. joint tenants or tenants in common). Partnership applicants must submit: name in full (no initials) of each person; name and style of the unincorporated business; and complete mailing address of each person In the case of corporations, the corporation should be directed to supply MNR with: (a) the corporations name, exactly as it is shown on the document under which it became incorporated; (b) the corporation's complete mailing address and telephone number; (c) the address and telephone number of the corporations head office, if different from (b), above; and (d) a corporate profile, within 30 days. Failure to submit the corporate profile may result in denial of the application.
13 of 27 7.1 Order in Council or Minister's Orders Her Majesty the Queen, whether in right of Ontario or Canada, including where represented by a Minister of the Crown, except MTO (MTO acquires Crown land through the filing of a Crown land plan) a Crown agency within the meaning of the Crown Agency Act (e.g. Ontario Northland Transportation Commission), but excludes Ontario Hydro's successor companies an agent corporation within the meaning of the Financial Administration Act (Canada) 7.2 Applicant Eligibility for Sale or Lease Freehold (i.e., sale) or leasehold (lease) title may be held in the name of: one person; two or more persons as joint tenants or tenants in common; a corporation eligible to hold land in Ontario; or one or more persons (who are named), carrying on business in partnership under the firm name and style of (name of firm). 7.3 Applicant Eligibility for Licence of Occupation or Land Use Permit A licence of occupation or land use permit may be held in the name of: one person; two or more persons (no reference may be made to joint tenants or tenants in common, but simple the names (e.g. John James Does and Jane Elizabeth Doe); * * a corporation eligible to hold land in Ontario; one or more persons (who are named), carrying on business in partnership under the firm name and style of (name of firm); or in the case of an unincorporated club (e.g., for a recreation camp) in the name of one person only, as "Trustee for the members of Club, or Trustee from time to time." * Licences of occupation and land use permits do not give an interest in land, but simply give the right to use the land consistent with the terms of the licence/permit. Because there is no "interest in land", the terms tenants in common or joint tenants are not to be used. However, this does not prevent the licence or permit from being issued in two names, nor does it preclude the licensees or permittees from entering into agreements between themselves as to the rights they consider themselves to have. In the capacity as trustee for the club, the person named shall be held responsible by the Ministry in all matters relating to the use of the lands, the permit and its conditions.
14 of 27 8. Discuss the Process With the Client Prior to undertaking any further action, the application should be discussed with the client. The discussion should include: the purpose of the proposed disposition; any known resource management/planning concerns related to the site or the purpose of the application; MNR's environmental assessment requirements and potential consultation requirements; any special policies related to the purpose of the disposition; potential options for Land Use Occupational Authority; MNR's pricing/rent policies; potential survey and appraisal requirements and responsibilities; general timelines to complete the project, including caveats related to timelines required by the applicant, a surveyor, and an appraiser; that the applicant should not retain a surveyor and/or appraiser until being instructed to do so by MNR; and that MNR will get back to the client. 9. Inspect the Site Prior to undertaken any further review of the application, the site should be inspected. The inspection should document: a physical description of the site; the location of any buildings or improvements that are on the land; presence of nearby utilities (e.g. electrical distribution lines); any apparent adverse claim to the site (e.g. encroachments by neighbouring property owners); a description of neighbouring land uses; existing or potential means of access to the site; the location of any known adjacent boundaries and survey monumentation; potential boundaries to be created; relation of nearby lakes, rivers, streams, lakes, ponds or intermittent watercourses; evidence of any previous flooding; any evidence of hazard lands (e.g. leda clay, unstable banks, etc.); and evidence of any habitat or rare or endangered species.
15 of 27 10. Notification of Forest Resource Licensees and amendment of Forest Resource Licences Forest resource licences (FRL) are issued under section 26 of the Crown Forest Sustainability Act (CFSA) (commonly known as a sustainable forest licence or SFL) or under section 27 of the CFSA (commonly known as a forest resource licence). Where the land that is proposed for disposition is subject to an active forest resource licence, the licensee's must be notified of a proposed disposition under the Public Lands Act and be given thirty days for the opportunity to make representations to the Minister (or delegate). This is a requirement of section 37 (2) of the CFSA. In addition, in all cases where the proposed disposition will result in a change of ownership of the land from the Crown in right of Ontario (ie a sale or grant), an amendment to the forest resource licence(s) must be proposed in accordance with section 34 of the CFSA. If the licensee is not in agreement or has only provided conditional agreement with the proposed amendment, the disposition may not go ahead until an amendment is approved. In the case of a proposed disposition on a SFL, this would include receiving Order in Council approval and the Minister's signature. In cases where the Crown would retain ownership of the land if the disposition were approved, there may be a requirement for an amendment to the licence but this will depend on the situation. The decision to require an amendment to the licence would be based on Forest Management procedures and consultation with licensing staff in the Industry Relations Branch of Forests Division. In accordance with the Forest Management Procedures, where a licence amendment is required, notification of the licensee for the proposed amendment under section 34 of the CFSA may be combined with the notice required under CFSA section 37. For detailed notice requirements and procedures to be followed for a proposed disposition of land from the area covered by a forest resource licence see Forest Management Procedures dealing with the disposition of land and amendments of forest resource licences. After thirty days written notice (under section 34 and or 37 of the CFSA), consideration of the licensee's representations, and any required licence amendment approvals being granted, the lands may then be sold, leased, or otherwise disposed of under the Public Lands Act. At any point in this process the District Manager may decide not to approve the disposition. Section 37(3) of the CFSA states that a disposition made under section 37 terminates the licence in respect of the land and terminates all rights of the licensee in respect of forest resources on the disposed land. This section only applies where the disposition requires an amendment to the area of a licence. In the case of an SFL, the rights granted under the licence are not terminated until the Minister signs the amended SFL document withdrawing the disposition land area. In the case of a FRL issued under
16 of 27 section 27 of the CFSA, approval of the amendment terminates the licensee s rights in respect of the disposition land area. 11. Survey Requirements If a document is to be registered in the Land Registry Office, the description must conform to O. Reg. 43/96 (Part XII - Descriptions of Land) made under the Registry Act. This regulation also applies to registrations made under the Land s Act. A survey will generally be required except where: a) the unit of land forms the whole of a lot on an original survey or registered plan; b) the unit of land is an aliquot part of a lot on an original survey; c) the unit of land is the whole of a part, block or lane on an existing reference or expropriation plans; or d) the Office of the Surveyor General advises that a description can be prepared without benefit of survey. Consideration should also be given to requiring the preparation of a plan of survey where: a) concern exists that development (e.g. dredging or filling) might result in the obliteration of the natural evidence of the boundary between private and public land, including where the disposition will be by a non-registered form of land use occupational authority (e.g. licence of occupation or land use permit); or b) the whole of a lot on a registered plan (e.g. a townplot lot) is being disposed of and the boundaries cannot be identified from existing posts (i.e., the posts are missing). In this case, the survey need not be performed if the applicant signs the liability waiver identified in Appendix "C" attached hereto. In all cases, the need for a survey and/or description should be confirmed in advance with the Office of the Surveyor General. 12. Offer Expiry Date In the past, commitments have been made to dispose of land at a certain selling price, rent or fee. In some cases applicants have not followed up on the offer until many years later after the selling price, rent or fee has become stale dated (e.g. current administrative fee of $1,000 rather than previous administrative fee of $750), or new information suggests that the previously approved disposition should not proceed. To maintain future options, any offer must contain an expiry date. The expiry date should be sufficient to allow for completion of all pre-disposition requirements (i.e., completion of survey and survey approval, appraisal of site, etc.). When making a commitment to dispose of land at a price prescribed by policy (i.e., an administrative fee), the commitment should not extend beyond the review date of the specific policy that prescribes the price.
17 of 27 13. Monetary Deposits A monetary deposit, as a performance guarantee, should not be collected, because: a) it binds MNR to follow through, even if new information or thinking suggests that it is not in the public interest to do so; b) the costs of collecting, receipting, recording, and retaining a "suspense" account and ultimately transferring to disposition account, frequently exceeds the cost of the deposit that was collected; c) the tendency has been to refund the deposit on flimsy grounds and the costs of processing the refund add up to a substantial loss to the Ministry. 5.0 REFERENCES 5.1 Statutory References Crown Forest Sustainability Act - sections 26, 27 and 37 Mining Act - sections 30(1)(b), 35, and 51 (2) Ontario Northland Transportation Commission Act - subsection 21(1) Public Lands Act - section 2, 15 (4) and (5), 16, 20(1), 21, 37.1 (1), 43, 44, and 55.1(1) 5.2 Regulatory References O. Reg. 43/96 (Part XII - Descriptions of Land) made under the Registry Act. 5.3 Case Law Weimeir et al. v. The Director of the Lands Administration Branch, MNR Mining Lands Commissioner Case, February 7, 1979 Regina v. Van der Peet, [1996] 2 S.C.R. 5.4 Directive Cross References PL 3.03.03 (P&P) entitled "Withdrawal and Reopening of Surface and/or Mining Rights - Section 35, Mining Act (POL) entitled " " PL 6.01.03 (POL) entitled "Disposition of Land at Less Than Market Value" PL 8.03.01 (P&P) entitled "Disposition of Surplus Acquired Lands" LUPB 4.02.75 (Disp) Disposition of Rights to Crown Resources MNDM Mining Lands Directive UC 306-3 Priority of Rights; Staking vs. Public Lands Act Applications
18 of 27 5.5 Other References Provincial Policy Statement, Queens Printer for Ontario, Revised 1997 A Summary of Policies and Guidelines for the Protection of Aquatic Habitat in Ontario, MNR, 1993 Fish Habitat Protection Guidelines For Developing Areas, MNR, 1994 Ministry of Natural Resources Statement of Environmental Values, 1995 Beyond 2000, Ministry of Natural Resources Strategic Directions, 2000 Ministry of Natural Resources Statement of Environmental Values Strategic Directions for the Management of Ontario Crown Land, February, 1993, Ministry of Natural Resources 7.0 REVIEW DATE: June 1, 2003
Appendix A 19 of 27 Application Work Plan 3.1 Pre-Screening Actions (PRO) Part A - Site and Applicant Information PL 4.01.01 Obtaining OICs Part B - Administrative Actions and Considerations 3.2 Consultations with Aboriginal Communities (PRO) 3.3 Environmental Review (PRO) 3.4 Issuance 0f Disposition (PRO) 3.4.1 Complete Pre-disposition Actions 3.4.2 ing 4.0 Marketing Options (POL) 4.1.1 Public Offerings 4.1.2 Restricted Offerings 5.0 Land Use Occupational Considerations (POL) 3.4.3 Application Denial 4.1.1 Direct Offerings PL 4.06.01 Com. Outpost Camps PL 4.06.02 Advertising Signs PL 4.10.01 Waterlot Disposition PL 4.10.02 Commercial Tower Sites PL Others Sale C.L. L.O. LUP Other Requisitions and Routings
20 of 27 APPENDIX B - LAND USE OCCUPATIONAL AUTHORITIES LAND USE OCCUPATIONAL AUTHORITY ORDER IN COUNCIL Where used: Example: DETAILS Only with concurrence of Coordinator, Crown Land Registry. To meet public land requirements of government or agencies (Orders in Council are now generally discouraged. As an alternative, the new Minister s Order should be used.) Transfer of Administration and Control of public lands to Ontario Northland Transportation Act, if OIC requested as form of authority. Authority: PLA-section 2 Ontario Northland Transportation Commission Act, s.s. 21 (1) Eligibility: See Explanatory Notes 7and 7.1 Description: Registrable description required Transferability: Transferable, subject to any reversion clause May require root of title Rights: Responsibility to administer (and control all rights) on behalf of the Crown Minister s Order Where used: To meet public land requirements of government or agencies. The Minister's Order generally replaces Orders in council that were previously used to transfer administration and control to governments or agencies. Example: OPP Telecommunication Tower Site Transfer to Canada for First Nation Reserve Lands Authority: PLA-section 37.1(1) Eligibility: See Explanatory Notes 7 and 7.1 Description: Registrable description required Transferability: Transferable, subject to any reversion clause Rights: Responsibility to administer on behalf of the Crown
21 of 27 LAND USE OCCUPATIONAL AUTHORITY Sale ( document is letters patent) DETAILS Where used: 1) MNR does not require future options or control over the use of the lands (e.g. municipal planning controls are adequate to control future land uses); 2) a person wishes to place valuable improvements and/or requires mortgage security; or 3) future financial or environmental liability may occur which could present a risk to the Crown (e.g. a waste disposal site, wood waste/mill site). Example: Waste disposal site, industrial development, cottage lot, residential lot Conditional Sale ( document is letters patent, which is issued after conditions satisfied) Authority: PLA-sections 15 (4) or (5), 16 & 43 Public Transportation and Highway Improvement Act (PTHIA); section 29.1 * * Only where closure authorized by PTHIA rather than a Minister's Road Closure Order under section 55.1(1), PLA Eligibility: See Explanatory Notes 7 and 7.2 Description: Registrable description required : Crown issues patent as soon as possible after sale Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Fee Simple (greatest estate in land) Where used: Example: Same as sale but MNR wishes to impose conditions to be met prior to issuing letters patent to ensure a level of investment or ensure a particular land use prior to patent. commercial base lodge Authority: PLA-sections 15 (4) or (5), 16 & 43 Public Transportation and Highway Improvement Act - s 29.1 Example: Highway commercial location Eligibility: See Explanatory Notes 7 and 7.2 : Crown issues patent upon completion of condition (i.e., 2 year building condition) Description: Registrable description required Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Right to acquire fee simple interest upon satisfactory completion of condition(s) of sale (i.e., building condition).
22 of 27 LAND USE OCCUPATIONAL AUTHORITY Lease A preferred instrument for long term land rentals (e.g. 10 years +), but MNR not prepared to issue rolling lease. DETAILS Where used: a person wishes to place valuable improvements or requires immediate mortgage security; where customer does not wish an early indication of future renewal of the lease and assumes the lease will not be renewed where future financial or environmental liability is not expected to occur with the reversion of the lands to MNR; and where MNR needs to retain future options for the site, or control future land use changes to the site or general area. Authority: PLA-sections 15 (4) or (5), & 16 Public Transportation and Highway Improvement Act (PTHIA), - section 318 * * Only where closure authorized by PTHIA rather than a Minister's Road Closure Order under section 55.1(1), PLA Example: Commercial outpost camp, communications tower held by private sector Eligibility: See Explanatory Notes 7 and 7.2 : Crown issues lease ASAP after approving application and receipt of first year's rent (i.e., after completion of survey, appraisal, etc.) Description: Registrable description required Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Leasehold interest for specified term Term: From 1 to 50 years, generally not less than 10 years. Should provide a sufficient time period over which investment can be written off (i.e., the greater the investment the longer the term required).
23 of 27 LAND USE OCCUPATIONAL AUTHORITY Rolling Lease Subject to a future review of the Crown Land Rental Policy this will be the preferred instrument for maximum term land rentals (i.e. 40 years with consideration for extensions). Where used: Example: DETAILS person is placing valuable improvements or requires immediate mortgage security: customer wishes an early indication of future renewal of the lease to plan for its continuance or its expiration future financial or environmental liability is not expected to occur with the reversion of the lands to MNR; and MNR needs to retain future options for the site, or control future land use changes to the site or general area (i.e., MNR is not prepared to sell). Enhanced tenure for recreation camp Authority: PLA-sections 15 (4) or (5), 16 & 43; Public Transportation and Highway Improvement Act - section 29.1 Eligibility: See Explanatory Notes 7 and 7.2 : Crown issues lease ASAP after approving application. Description: Registrable description required Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Leasehold interest for specified term Term: Generally 40 years with an option to apply in the 19 th year for an extension of an additional 20 years.
24 of 27 LAND USE OCCUPATIONAL AUTHORITY Lease With Option To Purchase Where used: DETAILS Used only in exceptional circumstances with approval of Regional Lands Specialist (in consultation with Land Management Section). Requires setting of formula for purchase price if option to purchase is elected (more work is required on this issue). Same as lease, except that MNR does not need to retain future options for the site, or control future land use changes to the site or general area. Water Power Lease Agreement Authority: PLA-sections 15 (4) or (5), 16 & 43 Eligibility: See Explanatory Notes 7 and 7.2 Special Requires clause that premises may be sold at any time during term Conditions: of lease, at market value at the time the option to purchase is exercised. Description: Registrable description required Rights: Leasehold interest for specified term Transferability: Assignable, with consent of MNR and payment of assignment fee Term: From 1 to 50 years; generally not less than 10 years Should reflect on a sufficient time period over which investment can be written off (i.e., the greater the investment the longer the term required). Where used: Where person is utilizing a Crown watercourse and/or Crown lands to develop waterpower Authority: PLA - section 42 Eligibility: See Explanatory Notes 7 and 7.2 Description: Registrable description required : Crown issues water power lease as soon as possible after disposition Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Leasehold interest may include a dam site, a generating station and/or right to flood head pond for a specified term.
25 of 27 LAND USE OCCUPATIONAL AUTHORITY DETAILS Easement Where used: Where a corridor is required for access or a utility (e.g., access road, gas pipeline, water intake) and a registrable document is required Example: Gas pipeline, fibre optics cable, or roadway that are surveyed Licence Of Occupation Authority: PLA - section 21 Eligibility: See Explanatory Notes 7and 7.2 Description: Registrable description required Transferability: Assignable, may or may not require consent of MNR and payment of assignment fee Rights: A property right of a landowner to use land of another for a specific purpose without interference in perpetuity or for a specified term. Term: Where used, is negotiable. Where used: Where person is not placing valuable improvements and requires no mortgage security, future financial or environmental liability is not expected to occur, and MNR wishes to retain future options and control over the use of the lands. Note: At the current time, the Ministry encourages the use of land use permits rather than licences of occupation. Example: water lots for bridges, causeways, docks, cell tower sites Authority: PLA-section 20 (1) Eligibility: See Explanatory Notes 7and 7.3 Description: -Registrable description required, if concerned about possible obliteration of natural evidence of boundary between private and public land (i.e., waters edge). -Description prepared by Crown Land Surveys based on existing survey data, suitable to allow retracement of boundary, if no concern about obliteration of boundary Transferability: Assignable, with consent of MNR and payment of assignment fee Rights: Personal right to use site for an authorized purpose for a specified period (historic LO's were issued at the pleasure of the Crown) with no right of renewal Term: From 1 to 20 years, generally not less than 10 years; no right of renewal. Should reflect on a sufficient time period over which investment can be written off (i.e., the greater the investment the longer the term required).