Undermining property rights

The Green Party of Ontario is proposing a radical change in the treatment of property rights in the province. It’s in this press release, announcing a campaign stop for party leader Frank de Jong in eastern Ontario:

Monday, August 27
1 to 3 p.m.
Hwy 509 just north of Clarendon Station
(10 km north of Hwy 7; Hwy 509 runs north
from Hwy 7, just west of Sharbot Lake

De Jong will show his support for the Ardoch Algonquin and Shabot Obaadjiwan First Nations’ ongoing protest against Frontenac Ventures Corp. The mining exploration company wants to test drill for uranium on the bands’ ancestral territory, which is the subject of ongoing land claim negotiations.

De Jong will call for:

  • A moratorium on uranium prospecting and mining in Ontario.
  • Modernizing of the mining act, which hasn’t been revised since 1880, to include subsurface rights with the title of land.
  • Settlement of the First Nation land claims.

The Ardoch Algonquin and Shabot Obaadjiwan have been blocking access to the land since June 29, and have vowed to remain despite an Ontario Superior Court order for them to leave.

MineDoorThe Greens are, very broadly put, opposed to mining and to nuclear power, so standing with natives trying to stop a uranium mine is a natural. In that sense, this is a pretty routine campaign stop. And for the Greens, it’s absolutely typical in that nobody, but nobody, will go to Sharbot Lake, an hour from anybody, to see what the leader of the fourth party in a three-party system has to say about anything.

That said, the second policy point is a doozy. In Ontario, as in many places, most land doesn’t come with its mineral rights — in general, if the land was ever owned by the Crown, and almost all of it was, the Crown kept the mineral rights when it granted the land to somebody decades or centuries ago and has never relinquished them. The government licenses out those rights to qualified prospectors, and with the mineral rights come rights to access land, to explore and dig and drill, and ultimately to set up a mine if an economically viable mineral deposit is found. Surface rightsholders need to be compensated for direct damage done to their property, but not much else, even though sometimes exploration can go on for years and years on a given plot while the value of the surface rights plunges nearly to zero. Who wants to buy land that a mining company might be able to kick you off of on a few months’ notice?

Proposing to change this system by handing mineral rights over to surface rightsholders is an extremely significant idea. Potentially very damaging to the mining industry in Ontario (not crippling, since a lot of the exploring happens in the sparsely populated northern reaches of the province, where the Crown still owns a lot of the land, but damaging) and also a colossal giveaway of government property to private individuals and landowning corporations. Using the Crown’s mineral rights to establish a mine someplace, after all, doesn’t come free. Mining companies pay the government big royalties on the minerals they extract.

Nevertheless, this is the way most people assume land rights actually work, and in this day and age, perhaps they should. Maintaining a system of parallel rights — that, in fact, overbalances things in favour of prospectors, who can come and go as they please and tramp on surface-rights owners more or less at will — casts a pall over all surface rights by valuing them at next to nothing. It amounts to a subsidy for mining that isn’t extended to any other land use.

If a mineral deposit is really worth getting at, it’s probably worth buying out the people who own the property on top of it at a fair market price.

(A provincial election is scheduled for Oct. 10 in Ontario, where I live, so expect more posts than usual on the provincial political parties’ environment-related promises as the campaign gears up.)

Photo credit: Flickr/SplaTT

Advertisements

14 responses to “Undermining property rights

  1. Gloria Morrison

    My husband and I have the dubious distinction of having started this issue[in our local area of Sharbot Lake]by having gone public with the fact that our land was staked.

    I am very pleased to see the Green Party taking this position and going to the mine site. I have never voted green – but I have been considering it. What a difference a year makes! We were staked last October. And I WILL BE VOTING DIFFERENTLY THIS TIME!!!!!!!!!!!! Gloria Morrison

  2. Mr. Reeveley:

    You and your readers need to know more about the ownership of minerals under private land.

    You have said some things that are very wrong.

    In fact, by virtue of the provisions of the Public Lands Act of 1913, the owners of almost all lands in Eastern Ontario do legally own the minerals.

    The problem is that officials in government ministries have abused the powers of their public offices to take them away – so that they can let mining firms access them for nothing – and despite the legal rights of the owners of land.

    I am appending the speaking notes that I used when I talked at a recent all-candidates meeting in the Lanark/Frontenac area. Those notes sketch some of the facts.

    The meeting had been organized by by Wendy Hassard and her associates at CMAG – to expose the candidates for the upcoming Provincial election to the problems that have been caused by the actions of the Ministry of Northern Development and Mines, and to get their response.

    I, as a person with a long-standing grievance against the Ministry was asked to join others with grievances of other sorts, including members of local governments, property owners who have been threatened with prospecting activities and those who are involved in the current uranium disputes.

    My grievance relates to the illegal efforts of officials in the Ministry of Northern Development and Mines to coerce me to give my minerals to the government so that the government could allow mining companies to access those minerals for nothing.

    If that sounds unbelievable, read the speaking notes, and you will see the exact words that the Ministry has used to confirm this appalling fact.

    You will see from my notes and from the few quotes from Acts of the Provincial Parliament that there’s a lot more to the ownership of minerals under land than your article suggests.

    The Mining Act has changed many times since the early 19th century and, matters related to the ownership of minerals have been covered by several Acts in addition to the Mining Act.

    The simple fact is that the minerals under most lands actually belong to the owner of the land surface.

    The problem is that officials in the Ministry of Northern Development and Mines, and before that in the Ministry of Natural Resources, have consistently and determinedly acted to try to confiscate private minerals so that they can give them to mining firms without having to pay the owner of those minerals anything.

    Of course things are a bit more complicated than is suggested in my speaking notes – they were intended for a political meeting with a general audience – but the core argument is valid.

    Charles Ficner

    //////////

    Following is a copy of my speaking notes:

    Talking points for meeting on August 11, 2007

    Charles Ficner

    I will be making the case:

    · that the Ministry of Northern Development and Mines has abused property owners and repeatedly broken the law in allowing mining firms to enter onto private lands to stake claims and to conduct exploratory mining activities …. and

    · that those actions by Ministry officials have been at the expense

    o not only of the interests of the owners of the land surface,

    o but also of their formal and binding legal rights that are set out in the Charter of Rights and Freedoms, in their deeds, and in the statutes of the Province of Ontario.

    I will also be making the case:

    · that politicians can’t be counted on to fix things, because all political parties have gone along with the mining-industry-serving goals that officials have set – and

    · that the only way to put things right is for citizens to take the government to court.

    Given the time limits, I’ll have to deal at an overview level and leave out some details. Nonetheless, strong arguments can also be made with respect to the details.

    My remarks arise from the knowledge and experience gained in a 17 year struggle with officials in the Ministry of Northern Development and Mines over the fact that they have illegal levied a provincial tax on one half of a property that I own in Lanark Highlands – for the purpose of coercing me to give them the minerals that I own – so that they can give those minerals to mining firms for a pittance.

    Officials at the Ministry have made it perfectly clear that that is absolutely their intent. Their formal and lawyer-vetted documents state:

    · “The tax [is] …intended as a means of returning land to the Crown.”
    · … no compensation is made to the owner whose lands are returned to the Crown.”
    · “The Crown does not … benefit from the return of the lands.”
    · “Rather, the Ministry provides the opportunity for someone else to acquire … the [confiscated]… property….”

    In plain words, the Ministry has levied its tax to coerce me to abandon my property – so that officials can give the confiscated minerals to mining firms.

    And they’ve done it to other mineral-owners too.

    As they have said, they have not set out to take private property for the benefits of the citizens of the Province, but to give the properties that they confiscate to mining firms – for their private exploitation and profit.

    They are acting as heavies for the mining industry.

    But that’s not the half of it.

    As is the case on my property, officials have imposed their confiscatory tax on properties that the Act does not allow them to tax.

    What is more, they appear to have illegally confiscated properties when the owners did not pay the illegally-applied tax.

    I’ll come back to this.

    Mining firms ahead of legal rights of citizens

    · I know that many of you have felt the heavy hand of officials as they sought:

    o to place the interests of mining firms ahead of the formal right that you acquired when you bought your land

    – the right to the “absolute” title to your property

    – and the right to “enjoy” the “quiet possession” of that property,

    – for “your sole and only use forever”.

    Instead of respecting that firm legal assurance:

    · officials have laid claim to the minerals under private lands;

    · they have allowed prospectors and mining firms:

    o to stake claims upon private lands;

    o to engage in exploratory mining activities

    o to remove plants and trees,

    o to remove “overburden”,

    o to dig trenches in and drive shafts into your land

    o to deprive you, entirely, of the use of your land

    o to make a permanent claim on your land if they find minerals on it, and

    o to leave the land in a severely damaged, dangerous and often uninsurable state if they did not.

    If you have patience and stamina, you might get some trivial compensation.

    “Quiet possession” of your land, “for your sole and only use forever” be damned.

    Pervasive and Intransigent bias

    The Ministry of Northern Development and Mines has routinely placed the self-serving interests of the mining community ahead of the firm legal rights of the citizens and the property-owners of Ontario.

    The extent of the largesse

    Consider their extraordinary generosity towards mining firms.

    Something like 80% of the land surface in Ontario is Crown land. That land, and the minerals under it, belongs to the people of Ontario. It is our birthright – and that of our children.

    Ministry officials allow prospectors to stake claims on almost every part of that publicly owned property,

    … and if they find valuable minerals, they allow mining firms to take those minerals for next to nothing.

    Destroy the law for an extra 1%

    The dispute that I am describing does not arise from the extraordinary generosity that officials demonstrate in giving the minerals that public owns to mining firms for a song.

    My focus is on the Ministry’s efforts to give mining firms access to even more property – to the minerals that lie under SOME of the privately-owned lands in the Province.

    I stress that it is only SOME private lands that they allow mining firms to trample, because even the Ministry will acknowledge that most minerals under private lands are actually owned by the land owner.

    The Ministry claims that the Crown owns the minerals under something like 5% of the privately-owned land in the Province.

    That amounts to about 1.0% of the total land within the Province – a trivial amount when compared to the 80% that officials have ensured that mining firms can claim because it is Crown lands.

    Nonetheless, Ministry officials have persistently shown a firm determination to give mining firms access to that extra 1% – even though that can only be done by harming the lawful rights of the private owners of private properties.

    Ministry officials have attacked those rights with force and determination.

    Unlawful taxation

    First: some context.

    Conflicts between mining firms and property owners are far from new.

    At the start of the 20th century the minerals under almost all private lands belonged to the Crown. Thus, mining firms could prospect on almost all private land.

    Prospectors did serious harm to a great deal of land – until the Parliament took steps to prevent it.

    Parliament brought the practice to an end by accepting proposals from farmers to give land owners the title to the minerals under their lands – so that they could prevent the unwanted incursions and damage by prospectors.

    Parliament passed The Public Lands Act of 1913 which 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 letters patent or by statute are void.”

    “In the case of lands patented after the 6th day of May, 1913, mines and minerals pass to the patentee unless expressly reserved by the letters patent.”

    In plain language:
    · all lands sold before 1913 had the minerals added to them, and
    · all lands sold after 1913 would normally be sold along with the minerals.

    As a result of this Act of Parliament, and the fact that most private lands in the area were sold by the Crown prior to 1913, and that almost all of the rest was sold before the Crown started, again, to reserve minerals when it sold Crown lands, the owners of almost all lands in Eastern Ontario own the minerals as well as the land.

    Parliament had fixed the problem – and it remained fixed until officials found a way to open it up again.

    Mining Act reflects the Public Lands Act

    The fact that the principal section of the Mining Act that says where a prospecting is allowed says that minerals under private lands are not open to prospecting activities reflects the provisions of the Public Lands Act of 1913.

    It says:
    PART II
    MINING CLAIMS
    Lands Open
    Where licensee may prospect for minerals
    27. … the holder of a prospector’s licence may prospect for minerals and stake out a mining claim on any,…
    (b) lands, the mines, minerals or mining rights whereof have been reserved by the Crown in the location, sale, patent or lease of such lands where they have been located, sold, patented or leased after the 6th day of May, 1913,

    What that says is that prospectors only prospect on private lands sold by the Crown after May 6, 1913

    · and prospectors can prospect on those lands only if there is an explicit reservation of the minerals in the original documents of sale.

    That clearly reinforces the provisions of the Public Lands Act of 1913.

    Section 30 of the Act says it in another way:
    30. (1) No mining claim shall be staked out or recorded on any land,
    (a) that, [was sold] without [a] reservation of the minerals;

    This all ties together.

    While officials have introduced much confusion by their actions and while other clauses in the Act can be quoted to create diversions, the essential fact remains:

    · in almost all cases, minerals belong to the land owner, and
    · prospectors – and Ministry officials – must keep their hands, their feet and their prospecting equipment off.

    How can the government claim to own the minerals under about 5% of the private lands?

    In the face of the provisions of the Public Lands Act of 1913, how can the government claim that it owns the minerals under about 5% of the private lands and how can it allow prospectors onto those lands?

    And why have officials in the Ministry treated some 5% of land owners in the Province in a discriminatory and inequitable way?

    I don’t have time to deal with some peculiarities, here, so I’ll state the blunt generalization:

    · officials in the Ministry have shown an outrageous bias in favour of the self-serving interests of mining firms, and they have shown a determined contempt for the rights of property owners;

    · there are strong reasons to believe that the Crown has no proper legal claim to many of the minerals that it claims to own under the private lands of Eastern Ontario;

    · officials appear to have acted contrary to the law in seizing those minerals and in allowing prospectors onto those lands; and

    · officials have broken the law in trying to defend their illegal taxation.

    Illegal taxation and confiscation

    On what basis did the Ministry lay claim to minerals under private lands?

    I posit that the Ministry’s claim arises in considerable measure from the fact that officials illegally levied the mining Acreage Tax on properties that the Act has never allowed to be taxed – just as they have done on my property – and that they took steps to confiscate the privately owned minerals under private lands when the owners did not pay the extortionary tax.

    I will simplify the legal argument because the exact wording of the provisions that allowed the Ministry to levy a tax changed slightly over the last century.

    The taxation provisions were first introduced in 1907. Those provisions allowed the Ministry to levy an acreage tax on “mining locations” and “mining claims” in “unorganized territories”.

    The provisions also allowed a tax to be levied on:

    mining rights” … in any unorganized territory … held … by any person not owning the surface rights in said lands …

    Despite the clear wording, officials levied the tax on properties that were not “mining locations” and that were not “mining claims” on lands and minerals that, instead of being in “unorganized territories”, were in organized municipalities, and on properties where the minerals were owned by the same person as the person who owned the land surface.

    That is, they taxed properties that they were not allowed to tax.

    Even though the wording of the provisions changed through the years, the conditions remained essentially the same. Even the Ministry has formally insisted, in writing, that this is the case:

    “Apart from changes to the tax rate, minor administrative updates and the change in the name to mining land tax, the form of the tax and associated procedures have been in place, essentially unchanged since 1907.”

    The Ministry continued to illegally levy the tax.

    While there are some other special circumstances in which the tax can be applied, there is absolutely no doubt that officials have illegally levied the tax on some properties

    · and there is much to suggest that officials have improperly confiscated some properties on which they had no legal right to apply the tax in the first place.

    There is much to suggest, too, that officials went to extraordinary lengths to cover up those illegal actions – and to try to “legalize” their continued application of the tax on properties that the Act did not allow them to tax.

    Officials, instead of doing what the law required, showed a determination to continue with their self-appointed commitment to their policy of:
    · tax,
    · confiscate and
    · give to the mining industry.

    As one example of the lengths to which they went to reinforce their confiscations, officials drafted an amendment to the Mining Act that clearly aimed at making it impossible for the legal owners to challenge the illegal confiscations.

    The provision says that the mere fact that officials declare that the lands and minerals have returned to the Crown automatically makes them belong to the Crown – even if officials had no legal right to claim those lands in the first place.

    Here are the exact words:

    “197 (3) … the Minister, by certificate …, may … declare …lands or mining rights … forfeited to … the Crown….”

    “197 (5) … a certificate of forfeiture … is absolute and conclusive evidence of the forfeiture to the Crown …and is not open to attack in any court by reason of the omission of any act or thing leading up to the forfeiture.”

    What outrageous provisions:

    · in plain language they say that if officials say that your lands belong to them, it belongs to them, and you can’t challenge their actions in the Courts.

    While the courts would likely throw that clause out if a legal and constitutional argument was made against it, the fact that officials chose to put such provisions before the Parliament, suggests that they were aiming:

    · to legalize the illegal,
    · to allow themselves to continue to operate in their traditional abusive and arbitrary way and
    · to do so with impunity.

    The fact that MPPs approved those appalling words shows how easy it is to lead – and mislead – MPPs.

    They approved laws that President Mugabe of Zimbabwe would find to be very much to his liking.

    The net result of such actions is that officials have carried on with their confiscatory policies – in absolute confidence that they can lead Ministers, MPPs, citizens and the courts by the nose.

    Their persistent demonstration of outright abuse of citizens in so many ways suggests that they have absolute confidence that if any citizen was to challenge their actions, they can count on the full power of the Ministry of the Attorney General – and the deep pockets of the public purse – being brought to bear against that citizen, and in defence of their own outrageous actions.

    There are many more examples that I could present to illustrate the lengths to which officials have gone to give mining firms access to minerals under private lands and to harm the rights of property owners.

    I could document a formal finding of the Information and Privacy Commissioner that shows that officials broke the privacy laws as they pursued their determined course to cover up the previous illegal application of the tax.

    · That is, I could discuss one of the patently illegal actions in which officials have engaged to cover up the prior illegal taxation.

    I could outline two occasions when officials offered to give me special treatment that would exempt me from the tax (while leaving others subject to it) if I did not pursue the matter.

    I could summarize the discussions in which a senior Ministry lawyer warned me not to take the Ministry to court over its illegal taxation – and threatened to do everything in his power to prevent the Ministry from losing the case –including using the deep pockets of the government to prevent me from taking the matter to conclusion.

    I could describe the logical and legal nonsense that officials tried to convince the Ombudsman of during a ten-year investigation of my complaint against their illegal taxation.

    I could outline the 11th hour legal arguments that they successfully used to prevent the Ombudsman from tabling a report that his office had produced after that protracted ten-year investigation.

    I could quote from the letter from a Minister of the Crown that states that his Ministry will pay me $5,000 – on the condition that I agree that my complaint that they had broken the law had have been addressed.

    I could compare that offer to one in which I might offer to pay a police officer $100 if he would agree that his complaint that I had been speeding had been addressed.

    I could compare such actions against the provisions in the Criminal Code that say:

    (2) Every one who wilfully attempts … to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
    (3) … every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who …
    (a) … attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;…

    I could refer to the failure of the Attorney General to respond to my formal complaint about the illegal actions of government officials.

    I could refer to the evasive nonsense that two Premiers put their signatures to.

    I have no doubt that members of this audience could also add a long list of examples of heavy-handed and abusive behaviour by officials – of bending the rules to accommodate mining firms – and of denying citizens the right to the “quiet possession” of their land.

    I sum up with five remarks:

    1. There is overwhelming evidence that officials have undermined the formal legal rights of land owners and broken and abused of the requirements of the law – in order to give mining firms unjustified access to the minerals under private lands.

    2. Ministry officials – and politicians – have shown persistence and determination in acting to put the selfish interests of mining firms ahead of the just and lawful rights of property owners.

    3. Experience shows that it is unreasonable to expect that the Ministry will deal in good faith on these matters.

    4. The fine words and firm promises of politicians on these issues are worth absolutely nothing.

    5. The only course that could bring the abuse to an end is to take the government to court – and to have the courts force the government to do what is required:

    · by the principles of fundamental justice,
    · by the provisions of the Charter, and
    · by the requirements of the statutes.

    A legal challenge against the actions of the Ministry would require, first, a firm legal opinion that confirms that the legal grounds are sufficiently robust to allow the case to succeed against what will inevitably be a major and most determined attempt by government lawyers to defend the government’s actions.

    There is little prospect of success against the actions that one can expect from the phalanx of high-powered lawyers that the government has already shown it will bring to bear to defend its appalling actions unless we engage a team of lawyers of the highest competence.

    It appears that an initial opinion from such a team of lawyers will cost in the order of $15,000.

    If that assessment confirms the strength of the legal case, we may then be able to move to take a class action against the government – with a view to ensuring that the situation that the provisions of the Public Lands Act of 1913 were intended to create do actually apply.

    That would again result in:

    · the re-uniting of the minerals under private lands with the land surface, and
    · a removal of the threat that prospecting and mining firms (with the determined support and encouragement of officials at the Ministry of Northern Development and Mines) would be able to ender onto, to use and to abuse private land without the willing agreement of the property owner.

    The net effect from the perspective of property owners would be that the owners of all private properties are treated equally and equitably – and without discrimination.

    The net effect from the perspective of the mining industry would be that they would have to content themselves with getting cheap and easy access to the 80% of the minerals in the province that are under Crown lands.

    And from the perspective of the Ministry, officials would no longer have to engage in the outlandish and costly efforts that they have consumed them in trying to trample on the rights of property owners so as to give mining firms cheap and easy access to an extra 1% of the minerals that exist in the province – minerals that lie under private lands.

    We’d end up:

    · with no distinctions in the way that property owners are treated. The owners of 5% of the privately-owned lands in the Province that Ministry officials have abused would be treated in the same equitable way as the owners of the rest of private lands,

    · with the rule of law being upheld, and

    · with all property owners being treated as one would expect in a country that purports to respect and to uphold the rule of law:

    o with all property owners having the prospect of “enjoying” the “quiet possession” of their property “for their sole and only use forever”.

    In a country that aims to be civil and civilized, that wouldn’t seem to be too much to hope for.

    It would seem to be an absolute requirement – all round.

    Sadly, if we are to have any prospect of getting there, it appears that legal action will have to be taken against the Ministry.

    If any of you are interested in considering or supporting the detailed consideration of our legal options, I would be pleased to discuss this more fully at the end of the meeting – with a view to planning the next steps.

    Thank you.

  3. In the above notes I suggested that the Crown owns about 80% of the land in the province.

    It appears that it actually owns about 87% of the land in the Province.

    So, it is levying its extortionary tax to increase the land area that is open to mining firms from 87% to 87.13% – a truly trivial increase that can only be given at the expense of the just rights of property owners.

    If it did not pursue that discriminatory, abusive and extortionary policy, and if it returned the minerals that it has confiscated to the owners of the land, that would have virtually no effect on the profitability of miing firms.

    The policy is not only discriminatory, abusive and unlawful, it also has no sound economic or industry development rationale.

    It is DESTRUCTIVE, and it is WRONG.

  4. In the above article I also suggested that the Crown claims to own the minerals under about 5% of privately-owned land. I did not want to exaggerate the case that I was making.

    In fact, I have found recent information that indicates that Ministry officials have claimed that they own the minerals under only 1% of private land.

    See: http://www.minesandcommunities.org/Action/press1565.htm

    The fact that the Ministry claims to own the minerals under only 1% of private land makes the case against the Ministry much stronger.

    And this makes the case made by Mr. Reevely even stronger, because he mitigated his argument on the grounds of a false presumption that the minerals under private lands were actually owned by the Crown.

    In the case that we both made, Mr. Reevely and I were far too generous to the Ministry of Northern Development and Mines.

    Simply, Mr. Reevely’s presumption that “In Ontario, … — in general, … the Crown kept the mineral rights when it granted the land … and has never relinquished them” is completely false.

    In virtually all cases land owners do own the minerals under their land – and the Crown admits this.

    And what is more, even in the cases of the very few properties where the Crown does claim to own the minerals, there is much to suggest that that claim is without sound legal foundation – and that the officials confiscated those minerals from the legal owners (the owners of the land surface) by actions that were in flagrant violation of the law.

    The huge inequity – and the illegal actions of the Ministry that lie behind it – as well as the ongoing abuse by officials to perpetuate it, needs to be put right.

    Charles Ficner

  5. Rev.Pat Callaghan

    A few things to try.Mining Act states “the Crown”.S.37 Crown Lands Act,gives legal right to Claim “the Crown”interest and claims.S.39 Criminal Code gives right to a Legal Claim of Right against others with the legal right.You are a legal Sovereign Citizen of Canada.

  6. Pat Stallaert

    I first learned of Charles Ficner’s 18 year struggle with the government while watching a TVO program “The Agenda” on which Mr Ficner was a guest speaker. Mr. Ficner struck me as a very rational, well spoken and well informed speaker. Hardly the rantings of mad man.

    I am very impressed and encouraged by his determination and at the same time, outraged by the actions of our ministries and elected officials.

    As a landowner once threatened by the prospect of a mining company destroying the natural beauty and survival of these lands by a small mining endeavour, I can certainly relate to the struggles he describes.

    I would welcome the opportuninty to correspond with mr Ficner if he were so inclined.

  7. Mining Act – Bill 173: A Bad Bill that would make BAD law

    The media and the public should take a good look at Bill 173 which is now in Second Reading before the Ontario Legislature.

    That Bill will not resolve the massive problems with the Ontario Mining Act.

    The Bill was introduced by the Ministry of Northern Development and Mines after what it claims was the most massive consultation in history, that began with the promise to bring mining into BALANCE.

    The Bill fails to do that in spades. Not only does the Bill not remove the major problems with the Mining Act, it does not bring mining into balance with other policies, priorities, rights or needs of the citizens of Ontario. The Bill would not even give the most essential protections to the rights of citizens or to the environment.

    It does not respond to the concerns outlined by Ontario’s Environment Commissioner in a recent report of his – concerns that point to the fact that the Act is premised on the presumptions:

    * “that mineral development will always proceed”,
    * “that mineral development is appropriate almost everywhere and that it is the “best” use of Crown land …”.

    The Bill would perpetuate what the Environment Commissioner described as:

    * “The ministries’ disjointed approach does not serve Ontarians effectively, nor does it provide adequate assurances of environmental protection in the quest for resource development.”

    The Bill is far worse than that. It would entrench in law different rights and different treatment for the citizens of Ontario based on where they live, and on their racial origins. It would preserve the immense privileges that mining firms enjoy. It would not offer the citizens of Ontario even the most basic protections of fair, just and equal treatment that most presume they are guaranteed in law.

    In two subsequent posts I will present a Press Release of the Coalition for BALANCED Mining Act Reform, which points to some of the most serious flaws in the Bill, and an outline of the Three MODEST Proposals which the Coalition has developed, and which have been widely endorsed by citizens groups, environmental authorities and municipal governments – and which many organizations, including the Cities of Ottawa, Kingston and Peterborough have petitioned the Province to include in the Bill

    Bill 173 does not come close to ensuring those minimum protections.

    … And those minimum protections that have broad support are a long, long way from what needs to be done with mining – if the far more massive privileges that the Ontario government grants to mining firms are to be brought into balance.

    One of those bigger privileges is pointed to by the fact that Ontario charges NO ROYALTIES on minerals extracted from the Province (except for diamonds). That’s right. Mining companies get to lay claim to the minerals of the Province without paying one cent in royalties to the citizens of the Province who own those minerals.

    Even China and Chile and Afghanistan and the Congo charge some royalties to get some benefits for their citizens.

    Danny Williams in Newfoundland charges royalties of 30% – going up to 50% of the selling price off the top – AND he takes a stake in the companies, so the people of Newfoundland get a share of the company profits as well.

    Not so in Ontario.

    In Ontario, mining companies get to claim and to take the publicly-owned minerals FOR FREE.

    But let’s start with something more modest. Let’s start with a consideration of the Three MODEST Proposals of the Coalition for BALANCED Mining Act Reform.

    Those proposals attempt to ensure that the citizens of Ontario get some of the most basic protections that most citizens of Ontario take it for granted that our government ensures already, and that they would be shocked to find out that our government works hard to deny to the Citizens of the Province.

    Not only have those most essential protections been undermined by Ontario’s Mining Act for years, the trivial changes made in Bill 173 would continue to allow those essential protections to be ignored.

    This Bill does not bring mining into Balance. It continues to place mining first, and it continues to undermine the rights and needs of the citizens of Ontario.

  8. THREE MODEST PROPOSALS to revise the Mining Act

    CONTEXT

    Mining Act changes are required to protect the rights of citizens

    Changes are urgently required to the rules that govern mining and mining exploration activities in the Province of Ontario so as to ensure that the rights, the interests and the health of the citizens of the Province are no longer made subordinate to the interests of mining firms.

    Both the Premier and Minister Gravelle have, constructively, acknowledged the need to modernize the Mining Act.

    MEANINGFUL CONSULTATION

    A longer, more open and more meaningful consultation process is required.

    WELL-FOUNDED SUGGESTIONS MUST BE INCLUDED

    The final product must include the Three Modest Proposals that have been developed by a number of well-informed individuals, groups and government organizations who have worked over many years to find practical and balanced ways to correct the most fundamental problems that arise from the fact that the current mining legislation gives extraordinary privileges to mineral exploration and mining firms.

    THE OVERALL AIM OF THE THREE MODEST PROPOSALS

    The Three Modest Proposals call on the provincial government to treat all land owners fairly and equally, and to give land owners, municipalities and all affected persons a proper say in all mining-related activities that would have an impact on them, their rights, their responsibilities, their health and their livelihood.

    BROAD SUPPORT UNDERLIES THE THREE MODEST PROPOSALS

    The Three MODEST Proposals are consistent with what has been proposed by a large number of community groups, municipalities, environmental bodies, politicians from all levels of government, and municipal politicians and officials working through the Association of Municipalities of Ontario (AMO).

    A number of municipalities (including Ottawa, Kingston and Peterborough) have formally passed resolutions endorsing the Three MODEST Proposals, and they have petitioned the Province to include those proposals in the revisions to the Mining Act.

    The Bill proposed by the government does not include any of them.

    THE ISSUES

    The Three Modest Proposals deal with:

    1. Single Ownership

    2. Local Planning

    3. Impact Authorization

    THE PROPOSALS

    The Three Modest Proposals call on the government to:

    1: Re-unify minerals with land

    2: Strengthen municipal planning powers

    3: Require a prior review and analysis of impacts

    THE PROPOSALS ELABORATED

    1. 1. The Government of Ontario re-unite all provincially-owned mining rights with land that is privately owned and municipally taxed.

    2. 2. The Provincial government give municipal governments: the ability to develop and to enforce official plans including mineral land use designation; and thus the subsequent authority to zone lands so as to restrict the locations in which mining activities can be undertaken, in accordance with municipal needs.

    3. 3. The Provincial government require a comprehensive public review of the impacts of proposed mineral exploration and mining activities before such activities can be undertaken by anyone.

    THE SIMPLE JUSTIFICATION

    Re-unifying minerals with land will:

    • – ensure that the 2% of property owners who do not own the minerals under their property have the same rights as the other 98% of property owners;

    • – permanently resolve the problems of two owners to one property: where land owners, whose deeds assure the right to the private enjoyment of their property, can lose that right because the government allows prospectors to lay claim to the minerals under their land and to conduct exploration and mining activities on their land without the owner’s consent; and

    • – bring an end to the discriminatory provincial mining acreage tax being levied on those properties where the owners already pay municipal taxes on their lands.

    This is consistent with the resolution passed by the Association of Municipalities of Ontario (AMO) on June 22, 2007

    STRENGTHENING LOCAL PLANNING WILL:

    • – result in a better balancing of the importance of mining, agriculture, recreation and tourism to the economy of Ontario, and ensure more open and transparent governance that respects the different realities in different regions of the province.

    REQUIRING A PRIOR IMPACT AUTHORIZATION WILL:

    • – ensure that mineral exploration and mining activities would cause no adverse legal, health, environmental and property impacts.

    THE DUTY OF GOVERNMENT

    Balancing mining with other priorities

    These Three Modest Proposals offer a positive step towards balance, by changing provincial legislation and procedures that allow mining firms to claim and to take publicly and privately owned minerals and to engage in mining activities in ways that put the environment, the legal rights, the properties, the investments, and the health of Ontario’s citizens at risk.

    DOING THE GOVERNMENT’S MOST ESSENTIAL JOB – PROTECTING ALL CITIZENS

    The Three Modest Proposals are completely in line with the duty of governments:

    • to protect the rights and interests of all citizens;

    • to ensure fair and equal treatment for all citizens;

    • to manage the resource wealth of the Province in a way that balances the rights and interests of all;

    • to protect the ecological systems upon which all citizens depend; and

    • to protect the health of all citizens throughout the province.

  9. PRESS RELEASE ON BILL 173

    Press Release

    Coalition for BALANCED Mining Act Reform (CBMAR)

    CBMAR STATEMENT on Bill 173
    The Act to Amend the Mining Act of Ontario

    Ontario’s Bill 173 to Amend The Mining Act is both UNBALANCED and UNJUST

    The proposals that Minister Michael Gravelle has made to change Ontario’s Mining Act will NOT bring Ontario’s Mining Act into BALANCE with other policies and priorities; with other legislation of the Province, and with the Rights and Needs of the citizens of the Province.

    Bill 173 fails to respect even the most basic requirements of equality, fairness and justice, and it will NOT bring peace to the Province on mining matters.

    The Coalition for BALANCED Mining Act Reform (CBMAR) is a broad coalition of citizens groups, environmental authorities and municipal governments that has made Three MODEST Proposals to bring mining into BALANCE with the rights and needs of Ontarians and with other priorities and policies of the Province and its citizens. Those proposals call on the government to overcome the serious negative effects that are caused by Ontario’s overly-permissive mining legislation by:

    1. protecting all private land owners – EQUALLY;
    2. allowing municipal planning procedures to determine where mining activities can take place with their local communities; and
    3. requiring all mineral exploration activities to undergo a comprehensive impact analysis BEFORE the work is done, and to preclude mining activities if that analysis shows that the work will damage the environment or the economy or harm the rights, the health, the investments, or the jobs of other citizens of the Province.

    NOT ONE of those essential requirements is met by Bill 173. Thus the Bill would continue to allow mining activities to cause immense damage: it would NOT bring mining into BALANCE; and it would NOT stop the conflicts caused by mining legislation that is overwhelmingly biased towards the interests of mining firms.

    Instead, the Bill proposes to make a few trivial changes, for example by requiring SOME consultation with SOME groups, by preventing claim staking on SOME private lands, and by requiring prospectors to take SOME “awareness training” before they can enter onto public and private land, lay claim to the minerals, and proceed with invasive exploration activities including cutting the trees, and doing exploratory trenching and drilling.

    Bill 173 will do nothing to stop the exploration on privately-owned lands where mining companies have already staked a claim. It will do nothing to stop provincial officials from overriding municipal plans within areas of municipal jurisdiction so as to allow mining to take place almost everywhere, and where it will do harm to other approved land uses. It will do nothing to stop exploratory work being done on public land (and on any private land where the owner wants to explore) without any consideration of the potential damage that that work would cause to other properties nearby – or to the health, investments and livelihood of the neighbours, or to the environment, the water and the air upon which all citizens depend.

    It will still allow exploration on almost all Crown Land in the more heavily populated parts of the Province without regard for the damage done to anyone.

    The Bill will also allow officials to behave in more arbitrary ways – by allowing even more decisions to be taken through regulations, at the discretion of officials, and entirely removed from the eyes of our legislators. In some cases citizens who would be harmed would be denied every right to appeal decisions to the courts.

    The Bill would even legalize discriminatory treatment among citizens of the Province, by causing citizens to be dealt with differently depending on their location and their race.

    The proposed practices even discriminate among First Nations Peoples by giving those aboriginals who live in the Far North the ability to control where mining can take place on their lands but not giving that right to aboriginals in the Near North or in the South, and by not giving that right to non-aboriginals anywhere.

    If Bill 173 is passed, no peace would be established on the mining issue because no just treatment would be assured and no BALANCE would be struck between mining and anything else. Bill 173 still puts mining first. Conflicts will inevitably continue.

    Despite the claim of the Minister, that: “This proposed legislation … would balance all of our respective interests”, the details of the Bill clearly show a serious lack of BALANCE.

    • Requiring mining in the Far North to respect community land use plans – while ignoring land use plans in Near North and in the South (where the majority of citizens live, and where land use conflicts are far more intense) will NOT introduce BALANCE.
    • Requiring consultations with some First Nations communities and introducing dispute-resolution mechanisms for aboriginal groups while ignoring the rights and interests of other citizens and while preventing the local governments of other citizens from developing and enforcing BALANCED land use plans will NOT introduce BALANCE.
    • Allowing mineral exploration and mining to take place on almost all Public Land in the Near North and in the South of the Province without considering the impacts on neighbouring lands or on other land uses, or on the environment or on the health the livelihood and the investments of other citizens will NOT introduce BALANCE.
    • Changing the trivial royalty payments required for diamonds while continuing to require no royalties at all on any other minerals will NOT introduce BALANCE.
    • Allowing prospectors to claim minerals through “internet map staking” will not reduce damage. Instead, it will open up Ontario’s mineral resources to many more global corporations and increase the threats to citizens. This will NOT introduce BALANCE.
    • Requiring prospectors to take an “awareness training” course before they conduct their exploratory digging, trenching, drilling and overburden removal on public or private land will NOT introduce BALANCE – and it will not stop the damage – or the abuse.

    In short, the Bill would not remove the oppressive conditions that are built into the current Act.

    The underlying premise of the Bill is the same as that which Ontario’s Environment Commissioner severely criticized in his recent reports – the premise that mining is appropriate almost everywhere, that mining must proceed, and that mining must trump all other policies and all other programmes of the government – and all other rights and needs of the citizens of the Province.

    The proposals included in Bill 173 are not simply unbalanced, they make a mockery of the principle of fair and equal treatment, and of the principles of fundamental justice, of the rule of law and of a government under law.

    Bill 173 is a BAD BILL – and it would make a BAD LAW.

    Now is the time for MPPs to do THEIR job, on behalf of the citizens of the Province.

    Not only do MPPs have the power to ensure that mining activities are put into a PROPER BALANCE with the rights, the needs and the interests of the citizens of the Province, they have the duty to ensure that the citizens of Ontario are given fair and equal treatment under truly just laws.

    On those criteria, MPPs MUST REJECT THE PROPOSALS set forth in Bill 173, and they must propose alternatives that will strike a PROPER BALANCE.

    Simple, fair and balanced solutions are available.

    Such solutions were set forth in the Three MODEST Proposals of the Coalition for BALANCED Mining Act Reform, and those Three MODEST Proposals have been endorsed by citizens groups, environmental groups, property owners groups and many municipalities – all of which have petitioned the Province to adopt these Three MODEST PROPOSALS.

    It is essential to reject the unbalanced proposals of the Ministry of Northern Development and Mines.

    It is time to put mining into a PROPER BALANCE with other policies, priorities and needs, and with the rights of ALL of the citizens of the Province.

    It is time for our MPPs to make OUR Democracy work.

    Coalition for BALANCED Mining Act Reform

    http://ato.smartcapital.ca/miningactreform

  10. WE NEED A REAL DISCUSSION ABOUT BILL 173

    AS Minister Gravelle said, the Devil IS in the details.

    We do need a real discussion on Bill 173 – with persons who really know what is going on and who are willing to discuss and to probe the real issues.

    Bill 173 is BAD Bill, that would result in BAD Law.

    The managed “consultation” that led to this Bill, and the carefully orchestrated message that is being conveyed about it, gives a prime example of what is wrong with our government institutions and the democratic process.

    Minister Gravelle appeared on The Agenda at TVO and he completely avoided the issues.

    He wasn’t even asked the hard questions.

    What we got was a lot of spin.

    It is the precise wording of legislation that matters – including the weasel words, the room for arbitrary decisions – including in the promise of more to come in the regulations and the policies and practices through which they are implemented.

    It is on those precise words, and the commas and the periods – and what the bureaucrats and officials can and will do with and through them – that our lives, our livelihood, our investments and even our rights and freedoms that are assured in the Charter live or die.

    Under Bill 173, many of them will die. The discussion with Minister Gravelle served to pave the path to their grave, and to walk us a bit more along the path to it.

    To see what is wrong with this Bill, and what has to be done to put it right, you have to get to the details – and, as Minister Gravelle said in the interview, the Devil IS in the details.

    There are many Devils in the details of Bill 173 – and there will be many more Devils, no doubt, in the unwritten words that will follow in the promised regulations that will get passed – and implemented – without ANY parliamentary scrutiny.

    We got no scrutiny of the Bill tonight. Instead, we got a few superficial highlights, a lot of successful side-stepping and a lot of well-rehearsed messages being played once again.

    What is needed is a real discussion – on the real issues – with those who know enough to cut through the political rhetoric and the pre-prepared bureaucratic spin.

    Perhaps someone in the media will, as it previously said it would, hold a real discussion involving those who know.

    Perhaps MPPs will give some real scrutiny to this rights-damaging Bill – and put things right.

    I hope so.

    For Bill 173 does NOT provide Balance, and it will not resolve the conflicts.

  11. MOST OPPRESSIVE PROVISIONS – UNEXPLORED

    In the interview with Steve Paikin, Minister Gravelle claimed that the changes that his officials have created and that he introduced into the Legislature would bring the Mining Act into balance with other priorities, policies, needs and rights.

    The Mining Act is far from “balanced”, and the provisions of Bill 173 would not bring that most oppressive Act into balance.

    To see just one example of the oppressive provisions that are built into Bill 173, one should consider the amendments to Section 175. Those amendments would continue and increase the extraordinary privileges that the Mining Act gives to mine owners – at the expense of the rights of the citizens who own public land and those who own private land.

    Bill 173 continues to allow those extraordinary privileges to be given to mining firms with nothing more than the approval of an unelected official.

    No rational or honest person could ever consider the giving of such privileges to mining firms to be fair, just or “balanced” – or as constituting a sound policy that is in balance with other policies and priorities of the Province, or with the just and lawful rights of the citizens of the Province.

    Here is the provision that appears in the act – and as it would be extended by the provisions of Bill 173.

    Balanced? … FAR FROM IT.

    ////////////

    RIGHTS OVER OTHER LANDS THAT MAY BE CONFERRED BY COMMISSIONER

    175.(1)Where required for or in connection with the proper working of a mine, mill for treating ore, quarry or oil or gas well, the owner … may … obtain and have vested in him, her or it by order of the Commissioner, …

    a) the right to open, construct, put in, maintain and use ditches, tunnels, adits, pipes, conduits, flumes and other works THROUGH, OVER OR UPON ANY LAND for the drainage, conveyance or passage of water;

    (b) THE RIGHT TO DISCHARGE WATER UPON ANY LAND or by, through or into any existing means of drainage whether natural or artificial;

    (c) THE RIGHT TO DRAIN OFF, LOWER OR DIVERT THE WATER OF ANY LAKE, POND, RIVER, STREAM OR WATERCOURSE, or any other water, ALTHOUGH THE WATER OR PART THEREOF MAY BE ON THE LAND OF OR OWNED BY ANY OTHER PERSON or that any other person may have rights or interests in or to such water or the use thereof;

    (d) the right to collect and dam back water, ALTHOUGH IT MAY OVERFLOW OTHER LAND;

    (e) the right to take or divert and use for or in connection with the working of his, her or its own mine, quarry or oil or gas well and bring thereto for such use any specified water, and TO CONSTRUCT AND MAINTAIN DAMS AND OTHER WORKS AND DO ALL OTHER THINGS NECESSARY OR CONVENIENT THEREFOR;

    (f) RIGHTS OF WAY OR PASSAGE THROUGH OR OVER ANY LAND OR WATER, and the right to construct, improve, maintain and use suitable roads, tramways, aerial tramways, channels, waterways, passages and other means of transit and transportation upon, through or over any land or water, together with such other rights of entry upon and use of land and water AS MAY BE … CONVENIENT THEREFOR;

    (g) the right to transmit electricity or any other kind of power, or have it transmitted, THROUGH OR OVER ANY LAND OR WATER in any form or manner and TO DO EVERYTHING … CONVENIENT THEREFOR;

    (h) THE RIGHT TO ENTER UPON AND USE for or in connection with the working of his own mine, quarry or oil or gas well a specified area of OTHER LAND;

    (i) THE RIGHT TO DEPOSIT TAILINGS, SLIMES OR OTHER WASTE PRODUCTS UPON ANY LAND, OR TO DISCHARGE THE SAME INTO ANY WATER, the effects of such deposit or discharge not being injurious to life or health.

    (j) RIGHTS OF WAY OR PASSAGE THROUGH OR OVER ANY LAND OR WATER, and the right to construct, improve, maintain and use works to transport oil, gas or salt in solution from his, her or its own wells.

    /////////

    Read those words again. The above words are drawn from the Act and Bill 173. For the most part, they are already part of the laws of Ontario. To the extent that those UNBALANCED provisions would be changed by Bill 173, the changes would EXTEND those oppressive rights to other forms of “mining” the underground resources of the Province..

    … AND those are only some of the most OPPRESSIVE provisions of the Mining Act that would be preserved by Bill 173, and that point to Bill 173 keeping mining from being OUT OF BALANCE with other policies, priorities, needs and rights of the citizens and the governments of the Province.

    Bill 173 is a BAD Bill – one that would make BAD Law.

    It would be good journalism to have those provisions – and many other UNBALANCED parts of the Bill – PROPERLY considered and discussed – before the Bill goes any further in the Legislature.

    The citizens of the Province would benefit from a SOUND review of the REAL issues – as they arise in the Act and in the Bill – and as they are understood by those who actually know something about the Act, the Bill, and the principles of justice and law.

    One would hope that someone in the media would do something to explore the REAL issues – and the REAL effects – and the REAL injustices that Bill 173 would perpetrate and perpetuate.

    Charles Ficner
    Coalition for BALANCED Mining Act Reform

  12. ILLEGAL TAXATION AND CONFISCATION – FOR THE BENEFIT OF MINING FIRMS

    Some of you may remember that I was interviewed on The Agenda some months ago.

    Mr. Paikin focused on my struggles over the past two decades to have officials stop illegally levying the provincial tax that they have illegally levied on part of my land – for the stated purpose of causing me to give my land to the province for nothing – so that officials can give the minerals to mining firms for nothing.

    At the end of the interview, Mr. Paikin asked me about the state of affairs at that time.

    I noted that I had approached Mr. Gravelle, that I had made my case again – and submitted the documents again and met with the Deputy – but that they had not responded as yet – so, we would see.

    I thought a few might be interested in the current state of affairs with respect to my complaints about the illegal application of an arbitrary and discriminatory tax against my land – and the apparent illegal confiscation of other lands by the Ministry of Northern Development and Mines (MNDM) for the non-payment of that inequitable tax.

    So far, officials at MNDM have continued in the same long-standing pattern – of evading, avoiding and misrepresenting the facts and the ACTUAL requirements of the law – even though they have made the slight concession of admitting that the statutes are “ambiguous” in some time periods.

    Based on that admission (far short of the ACTUAL requirements of the law) officials have proposed to resolve the matter by paying me a token sum of money – while not admitting they have broken the law – and while still continuing to leave my property subject to the illegal taxation – and without having to face up to the ACTUAL requirements of the law.

    In effect, the proposal that officials have made to resolve the illegal taxation, like the proposals that previous bureaucrats have made, continues the cover up and the deceit, it does not correct the injustice and it does not reflect or respect the ACTUAL requirements of the law.

    Instead, the proposal depends upon officials having:

    • avoided the hard evidence that was already in their hands,

    • selectively used, misused, misrepresented or ignored the ACTUAL provisions of the statutes,

    • misrepresented and ignored the ACTUAL requirements of the law,

    • invented a claimed “intent of the legislature” that is inconsistent with the evidence (a claimed intent that they admit is nothing more than a guess: (“But then we’re all… guessing on what the intent is…” ) – a guess that is contradicted by hard evidence,

    • ignored the rules of statutory interpretation that have been confirmed by Canada’s Supreme Court, and

    • relied upon many similar evasions, misrepresentations and sleights-of-hand.

    I conveyed that message to Minister Gravelle when I, again, asked Mr. Gravelle to meet to resolve the matter, since, as I noted to the Minister, no SATISFACTORY RESOLUTION could possibly come from his officials ignoring and misrepresenting the ACTUAL requirements of the law or trying to find a way to cover up the illegal actions in which they engaged.

    Minister Gravelle has recently “responded”.

    His response follows the law-denying pattern that his Chief of Staff had previously outlined as inevitable for the Ministry and the government when he spoke with me about the false claims of bureaucrats and their team of legal evaders.

    Mr. Gravelle’s Chief of Staff had explained:

    • “… it would be quite understandable for you to conclude that WE’RE JUST THE SAME BUNCH OF LIARS AND CROOKS AS THE PREVIOUS BUNCH.”

    HE ACKNOWLEDGED THAT THOSE IN THE MINISTRY KNOW THAT THEY BROKE THE LAW:

    • “THERE IS AN AGREEMENT … THAT YOU WEREN’T TAXED CORRECTLY.”

    BUT:

    • “… THERE ARE PEOPLE WHO ARE VERY UNCOMFORTABLE WITH THE IDEA OF ADMITTING THAT THEY HAVE BEEN WRONG FOR A LONG TIME … they don’t want you to be the thin edge of the wedge”

    THE NET RESULT:

    • “[Officials] WOULD RATHER GIVE YOU MONEY AND NOT ADMIT IT THAN ADMIT IT – EVEN IF IT’S GOING TO COST THEM LESS MONEY”

    THE POLITICAL BUY-IN:

    Mr. Gravelle refused to discuss the legal evidence that officials had broken the law – and that his Ministry was continuing to break the law.

    He failed to comment on the documented evidence that I had sent to him that showed that the claims of his officials were based on most serious evasions, avoidance and misrepresentations – and that the tax had been and continued to be illegally levied on my property.

    He ignored, as well, the evidence that suggests that the tax had been illegally levied on other properties as well, and that the government had illegally confiscated property – because the owners had not paid a tax that officials had no legal right to levy in the first place.

    Instead, he focused on how much I want to be paid.

    • “AT MY INSTRUCTION, MY CHIEF OF STAFF HAS TWICE ATTEMPTED TO ENGAGE YOU ON THE TOPIC OF COMPENSATION, and you have declined to elaborate on what you mean by “meaningful compensation”. – Michael Gravelle, July 2009

    He expressed frustration that I was not satisfied with his proposal to change the Act so as to allow me to beg him not to tax me – and him to decide to waive the tax – if he chose to be nice to me:

    • “if Bill 173 becomes law, your land will no longer be subject to the Mining Tax UPON SUCCESSFUL APPLICATION, AND IF THAT OCCURS neither you, nor your son, would have to pay the taxes”

    His proposal made it clear, however, that he had no interest at all in treating all citizens equally or equitably – the decision as to whether the tax would be levied would be his alone – and his decision would not be open to appeal:

    • “(1.3) The decision of the Minister under subsection (1.1) or (1.2) is final.”

    He completely ignored the hard evidence that shows that the law does not allow him to tax my property in the first place.

    He expects me to be satisfied with his substituting of his own arbitrary decision for the guarantee of equal protection and benefit of the law that is assured in the Charter – and for the actual requirements of the Mining Act – the will of the Legislature – and the rules of the courts.

    So much for living in a country that is governed by the rule of law. So much for officials – and governments – respecting the law – let alone the rights of citizens.

    So much for respect for the provisions of the Charter that guarantee that:

    “Every individual is equal under the law AND HAS THE RIGHT OT THE EQUAL PROTECTION AND EQUAL BENEFIT OF THE LAW WITHOUT DISCRIMINATION”.

    THE LAW-DESTROYING MIND-SET THAT PERVADES

    The mindset that lies behind the abuse of the powers of positions of public trust is evident in additional comments from the Chief of Staff:

    • “it has nothing to do with ill will to you personally or a cover up.”

    • “It has everything to do with the fact that they are trying to limit their liability and they don’t like being wrong. They are embarrassed …”

    THE DEPUTY’S TAKE ON THE LAW:

    Claim that the legislation allows you to levy the tax – even in the face of the facts:

    • “I think … we think … up until ’55 and from ’91 on it was the intention of the legislature to do this and that it was legal.”

    WHAT THE HISTORY SHOWS:

    From the first application of the tax in 1907, and up until 1955, the tax was allowed ONLY on “MINING LOCATIONS AND MINING CLAIMS” and on “MINERALS SEVERED FROM THE SURFACE RIGHTS”.

    From 1955 to 1991 the tax was allowed only on “MINERALS … DEALT WITH SEPARATELY FROM THE SURFACE”.

    The 1989/1991 changes were made for two purposes only:

    • to change the name of the tax and

    • to allow the tax rates to be set by regulation

    AS THE EXPLANATORY NOTES TO THE 1989 BILL EXPLAINED:

    • “All references to `Acreage Tax’ in Part XIV will be changed to `Mining Lands Tax’ and the rates will be prescribed by regulation.”

    AS THE MINISTER UNDER WHOM THE 1989/1991 CHANGES WERE PREPARED CONFIRMED:

    There was absolutely no intent to tax properties that were not previously subject to tax:

    • “This was clearly not the intention of the Liberal Government when it introduced the Legislation.”

    • “[That would be] a violation of the principles of fairness and justice on which our country is founded.”

    • “It was not intended.”

    • Sean Conway – Minister under whom the 1989 Bill was Drafted

    IF THE FACTS DON’T SUPPORT YOUR CONTENTION – THEN IGNORE THE FACTS, CLAIM THAT THE LEGISLATORS GOT IT WRONG – AND BACK UP YOUR CLAIMS WITH A “GUESS”

    • “They [the legislators] didn’t reflect it [their intent] properly in the legislation.”

    • “But then we’re … guessing on what the intent is …”

    o Deputy Minister

    THE OVERALL CONCLUSION OF THE CHIEF OF STAFF:

    • “I MIGHT BE MORE CYNICAL THAN YOU, MR. FICNER. WHAT I SEE AS THE MOST LIKELY EXPLANATION IS THE REFLEXIVE SELF-INTEREST OF ORGANIZATIONS”

    AS THE MINISTER’S CHIEF OF STAFF SAID:

    • “You have been very fair, … and I appreciate that because IT WOULD BE QUITE UNDERSTANDABLE FOR YOU TO CONCLUDE THAT WE’RE JUST THE SAME BUNCH OF LIARS AND CROOKS AS THE PREVIOUS BUNCH.”

    MORE AVOIDANCE, EVASION, COVER UP – MORE UNDERMINING THE LAW

    I originally asked Minister Gravelle to meet with me more than a year ago, when he was relatively new to the Ministry. I outlined the issue in detail.

    His staff said that they would have to get the side of the officials on the story.

    Bureaucrats have now given “their side” now – and as the above comments confirm, Minister Gravelle’s office knows that Ministry staff have given more of the same evasion, misrepresentation and distortion.

    I asked Minister Gravelle, again, in the latter part of April this year (more than a year after my original request to him), to meet with me to bring the matter to a proper, just and law respecting resolution.

    During that time Minister Gravelle has made a public commitment that he was “going to resolve the situation in a satisfactory fashion.”

    I continue to believe that that “satisfactory fashion” can only be in accordance with the principles of fundamental justice – and the ACTUAL requirements of the law – rather than in accordance with THE “REFLEXIVE SELF INTERESTS” OF BUREAUCRATS WHO DO NOT WANT TO ADMIT THAT THEY HAVE BEEN WRONG.

    I had hoped that Minister Gravelle and Mr. McGuinty’s government feel the same – and that it is the firm and unwavering obligation of every Ministry in their government to act in accordance with the principles of fundamental justice, the rules of statutory interpretation, and the actual requirements of the law.

    Evidently that is not the case with Minister Gravelle. Evidently, he would rather act out of the motives that his Chief of Staff attributed to officials:

    • “reflexive self-interest”.

    … And by the way, Bill 173 does not resolve the matter. It continues to be based on the same presumption – that officials have the arbitrary right to levy inequitable and illegal taxes – so that they can confiscate property from those who legally own it – so that they can give that property to mining firms for nothing.

    Minister Gravelle appeared on The Agenda after the Bill was introduced. He was not asked the hard questions, and The Agenda did not have a panel discussion of those who are in a position to comment on the most serious defects of that Bill and the most serious inequities that it would continue to perpetrate.

    It would, for example, still allow the discriminatory and inequitable taxation of some lands – to confiscate the lands and/or minerals from the legal owners – so that officials can give them to mining firms for nothing. There are many other problems with Bill 173 that were not addressed in the interview with Minister Gravelle on The Agenda.

    You can see some comments on that interview and on Bill 173 here: http://www.tvo.org/cfmx/tvoorg/theagenda/index.cfm?page_id=401&action=viewthread&forum_Thread_id=8460&forum_id=42

    Mining Act – Bill 173: A Bad Bill that would make BAD law

    You can see some additional comments on the abusive provisions that that Bill would continue – and expand – elsewhere in this thread.

    As for my own case, as I said, I am hoping that Minister Gravelle and Mr. McGuinty’s government feel the same as I do – that it is the firm and unwavering obligation of every Ministry and of the government as a whole to treat all citizens justly – and equally – and in accordance with the provisions of Section 15 of the Charter – and to treat all individuals in accordance with the principles of fundamental justice, the rules of statutory interpretation, and the actual requirements of the law.

    I would like to meet to get this resolved, and I would like to see some real evidence that that is their actual intent – and to see them take some concrete steps towards doing the right thing – and very soon.

    But Mister Gravelle and his cronies have made it clear that they have no intention of doing that.

    • What a blatant travesty of law and of justice!

    • What a persistent and determined breach of public trust!

    • What a determined abuse of the powers of public offices!

    • What a threat to our Constitutionally-entrenched rights!

    • What a threat to our “Democracy”!

    Maybe Premier McGuinty will do something about it this time. Maybe, just maybe, he has some respect for the law – and some respect for the principles of fundamental justice – and some respect for his duty to protect the rights of citizens.

    Just maybe he’ll get involved – this time. … I must admit that the comments of the Minister’s Chief of Staff do weigh hard upon my hopes for the premier and the government. But maybe he does have a grasp of what is meant by “The Rule of Law” – and that the meaning has nothing a tall to do with bureaucrats and governments being able to abuse the positions of public trust that they hold – so as to be able to break the law, damage the rights of citizens, and use the power associated with their positions to get away with that law-breaking.

    We’ll see.

  13. OPEN LETTER
    To
    The Premier of Ontario

    FIXING A SERIOUS AND ONGOING PROBLEM

    “We’re just the same bunch of liars and crooks as the previous bunch.”
    SO SAYS
    THE CHIEF OF STAFF
    OF
    ONE OF YOUR MINISTERS

    21 September 2009
    Dalton McGuinty
    Premier of the Province of Ontario
    Queen’s Park
    Toronto ON, M7A 1A1

    Dear Mr. McGuinty:
    I ask you to meet with me to find a just, proper and law-respecting resolution to a matter that has defied resolution with officials for almost 20 years.

    I regret that this letter is as long as it is, but the actions of officials have made the story complex, and it is important that the issues, the background and the context are clear, and it is important to get things right.

    I regret, too, that this is sent as an open letter, but the persistence and the determination of officials and Ministers in avoiding dealing with this matter in a proper and law-respecting way, the proposals made by Michael Gravelle in Bill 173, and the timing of that Bill mean that serious attention must be given to this matter now.

    BACKGROUND

    The problem arises from the fact that officials have levied a special provincial tax on a very small percentage of properties in the Province – including on properties that they have had no legal right to tax. That tax is not the normal property tax that is levied by municipalities for municipal and school services. It is a special tax that is levied by provincial officials in the Ministry of Northern Development, Mines and Forestry, and it is often several times greater than the municipal and school taxes combined.

    The tax is a most peculiar tax, and officials have most seriously misapplied it.
    Officials and Ministers have said, plainly and in writing, that they are applying the tax for the purpose of taking property from its legal owners – and not for the benefit of the citizens of Ontario – but so that officials can give the confiscated property to mining firms for free:

    • “The tax [is] …intended as a means of returning land to the Crown.”
    • “… no compensation is made to the owner whose lands are returned to the Crown.”
    • “The Crown does not … benefit from the return of the lands. Rather, the Ministry provides the opportunity for someone else to acquire … the [confiscated]… property….”

    That alone is sufficient to raise deep concerns about what officials have been doing, because it is inconceivable that the Legislature of Ontario would have agreed to allow the government to use its taxation powers to take private property from its legal owners so that officials can give it to someone else.

    Not surprisingly, statutes and the legislative record confirm that the Parliament of Ontario has never authorized the imposition of any tax for any such purpose.

    The Legislature did authorize a special tax on those properties that were sold with a requirement that the properties must be mined and with a clear indication that if they were not mined, they would have to be given back to the Crown. Such properties were usually granted in areas where the Province did not intend settlement to take place, where there was no organized municipality and where there were no local taxes.

    But the Legislature has never authorized any special tax on any ordinary lands that were subject to municipal taxation and that were not formally sold with a formal requirement that they must be mined or that were being held or used for mining purposes.

    The problem that I am approaching you about concerns the fact that, despite the clear wording of the statutes and the clear intent of the legislature, provincial officials have applied this special Provincial tax on properties that they have never had the legal right to tax.

    While the amount of land that has been taxed in this way is very small when compared to the total amount of privately owned land in the Province, that extraordinary provincial tax has resulted in the Province confiscating the minerals under about 1% of private lands in Ontario – including from properties that officials had no right to tax in the first place.

    During the 1950s and 1960s the minerals under many of the properties that were taxed were confiscated from the owners, and in the time period between 1969 and 1989 more than 25% of the properties that were taxed were confiscated. Officials confirmed this in 1989:
    “Since the last increase in acreage tax in 1969, approximately 400,000 acres have returned to the Crown. This represents about 26 per cent of the total area.”

    Since the tax has been so effective, I am one of very few property owners who have had the tax applied on their properties and who are not engaged in mining who is still being subjected to this tax. Most of those who were once taxed did not pay the tax at some time in the past and officials confiscated the minerals under their land (and sometimes they confiscated the land surface as well as the minerals).

    In applying the tax as they have, officials have effectively been acting, from within the government, as agents of the mining industry. They have misused the powers of government so that they could take property from its legal owners – and then give it to mining firms for free.

    The common term that is applied to the action of those who, without benefit of the statutes, put pressure on other property owners to “pay up or we will take your property from you and give it to our friends” is extortion.

    THE ESSENCE OF THE ILLEGALITY IN MY OWN CASE

    In my own case, officials have forced me to pay the tax on one half of a bush lot that I own despite the fact that officials have had no right to tax my property. I have always paid the tax so as to keep officials from stealing the minerals that I own under my land.

    The amount of tax that they demand from me is more than twice as much as I have to pay in municipal and school taxes combined – and provincial officials have levied the tax on my property at least since 1952 (in one letter officials claim that they started to tax my property in 1907).

    There is absolutely no doubt that the statutes have NOT allowed officials to tax my land.
    The statutory provision have made it absolutely clear that the tax could only be legally collected on minerals “under every mining location and mining claim”, on lands that were “used for mining purposes” and on minerals that were “severed from … the surface rights”.

    My property has never met any of the conditions that allowed the tax to be applied – from the time of the first authorization of this supplementary tax in 1907 to the most recent change to the statutory provisions in 1989.
    Both the legislative history since 1907 and the comments of the Liberal Minister under whom the 1989 changes to the Mining Act were drafted leave absolutely no doubt that the Legislature has never intended to tax properties like mine. Sean Conway explicitly said:

    “This was clearly not the intention of the Liberal Government when it introduced the [1989] Legislation. [That would be] a violation of the principles of fairness and justice on which our country is founded. It was not intended.”

    What is more, the provisions of several Provincial statutes have made it absolutely clear that the intention of the legislature has never been to confiscate the minerals that are owned by private land owners. On the contrary, those statutes show that the Legislature has made it clear that it wants the Province to give any minerals that the Crown should acquire under private lands to the owners of those lands.

    The Legislature took a very major step to confirm this in the provisions of the Public Lands Act of 1913, by which the Legislature gave all of the minerals that the Crown had previously reserved to itself to the owners of the land surface above those minerals, and made it clear that all future sales of Crown lands would include the minerals as well.

    A more recent confirmation of this same policy was given in the Mining Act itself in 1997, where the Legislature confirmed that the minerals that the Crown had acquired under private lands that were once owned by the Canada Company were to be given back to the owners of those lands.

    Not only have the actions of officials in trying to take the minerals under private lands from the land owners been in direct conflict with the provisions of the statutes and the intent of the legislature, they have also been in conflict with the provisions of Canada’s Charter of Rights and Freedoms. In levying a tax on far less than 1% of land owners and not on the other 99% of the owners of land who are in similar situations, officials have acted in a most discriminatory way towards those land owners whom they have taxed. Their actions constitute a direct contravention of the equality provisions that are set out in Section 15 of the Charter. Section 15 confirms that:

    • “EVERY INDIVIDUAL … has the right to the EQUAL PROTECTION and EQUAL BENEFIT of the law without discrimination”.

    There can be no doubt that officials acted contrary to the law in taxing my property and many others, and there can be no doubt that the consequences of their discriminatory, arbitrary, inequitable and illegal taxation and confiscation has been severe for the small percentage of property owners who have been affected.

    OFFICIALS KNOW THAT THEY HAVE BROKEN THE LAW

    There is also absolutely no doubt that OFFICIALS KNOW that they have acted contrary to the law.

    Mr. Gravelle’s Chief of Staff has made that perfectly clear:

    • “There is an agreement in principle that you weren’t taxed correctly.”

    Worse than that, officials, despite knowing that they have illegally taxed my property, have shown a persistent determination both TO COVER UP THE ILLEGAL TAXATION and TO AVOID DOING WHAT THE LAW REQUIRES THEM TO DO TO CORRECT THE DAMAGE THAT THEY HAVE CAUSED to me and to others by acting outside the law.

    Mr. Gravelle’s Chief of Staff has also made explicit statements that confirm that to be the case:

    • “GOVERNMENT … WOULD RATHER GIVE YOU MONEY AND NOT ADMIT IT THAN ADMIT IT – even if it’s going to cost them less money.”

    • I might be more cynical than you … What I see as THE MOST LIKELY EXPLANATION IS THE REFLEXIVE SELF-INTEREST OF ORGANIZATIONS … organizations reflexively protect themselves …

    • It has everything to do with the fact that they are trying to limit their liability and they don’t like being wrong”

    • They are embarrassed … so I’m not sure that you will get the … satisfaction of getting to see … the government … saying … we admit it.”

    Those remarks go a long way to explaining the bureaucratic obstructionism that I have been faced with over the last two decades as I have tried to have officials stop taxing me – and return the taxes that they have illegally forced me and previous owners of my property to pay.
    The summary comment of Mr. Gravelle’s Chief of Staff hits the mark:

    • “… it would be quite understandable for you to conclude that WE’RE JUST THE SAME BUNCH OF LIARS AND CROOKS as the previous bunch.”

    A LONG AND PERSISTENT HISTORY OF EVASION, DENIAL AND ABUSE

    The pattern of distortion, evasion and denial has been evident from the time when I first raised this issue with officials in 1990. Since then, they have persistently refused to discuss the illegal taxation of my property and the illegal taxation and confiscation of the property of others.

    In the first instance officials proposed to MAKE A DEAL with me.

    • … They would stop taxing me if I would not raise the issue with any others who were being illegally taxed and with those who had had their properties improperly confiscated.

    When I pointed out that that they were required by the law to stop taxing me and to fix the problem for everyone whom they had illegally taxed, they adopted other tactics. They made it clear that they would “do everything in their power” to ensure that the government did not have to correct the problem. And the evidence indicates that that is what they have done ever since.

    • They misrepresented the statutes;

    • They threatened to abuse their power and to use the deep financial pockets of the government to prevent me from getting a fair hearing in the courts;

    • They broke the privacy laws and misrepresented private information about me to discredit me and my case (there is a formal finding by the Information and Privacy Commissioner that confirms that); and

    • They used legal tactics to prevent the Ombudsman from completing a report that his office had been working on for over 10 years. (They argued that he had no jurisdiction to consider my complaint because I had not previously made a formal legal complaint through a quasi-judicial process.)

    On several occasions, officials resorted to further attempts to get me to accept “A DEAL” that required me to ignore the fact that they had broken the law and keep quiet about the damage that the illegal taxation has caused to other citizens.

    One of your own Ministers even offered, in writing, to pay me $10,000:

    • “on the condition that [I] agree that [my] complaint [that officials had illegally taxed my property] had been addressed”.

    That “OFFER” has a striking similarity to what one who was caught speeding might “offer” to the police officer – to pay him $100 on the condition that he would agree that his complaint had been addressed.

    Two retired judges, on reviewing the “OFFER” from your Minister, have concluded that it had the characteristics that would qualify it as an attempt to bribe.

    SINCE I FIRST WROTE TO YOU ABOUT THIS

    When I had previously reached an impasse with officials and previous Ministers in 2005 (your Ministers would not even acknowledge my letters), I wrote to you. Surprisingly, you encouraged me to continue to work with those who would not respond.

    Since then, I have tried, again and again, to get officials and Ministers to work to find and to implement a law-respecting resolution – and I have repeatedly pointed out that there is an easy way out.

    At every turn, officials have avoided that law-respecting course. Instead of dealing with the issues, officials at all levels played more games, and then they formally refused to respond to any further communications from me.

    I tried once more when Michael Gravelle was appointed as Minister. The initial discussions with his Chief of Staff were encouraging, but once Mr.Gravelle involved his bureaucrats, things went back to the old path.

    The net effect of more than 18 months of patient submissions, has been that Mr. Gravelle’s senior bureaucrats have continued to misrepresent the statutory provisions and the “intent of the legislature” and they have refuse to discuss the evidence that contradicts their claims. When confronted with hard and indisputable evidence that shows that their claims are false, they have replied in a way that I can only interpret as demonstrating a firm contempt for the actual provisions of the statues, the actual intent of the legislature and the rules of the courts concerning how statutes are to be interpreted.

    IGNORE, DISTORT AND DENY THE FACTS – REFUSE TO DISCUSS

    In the end, they ignored the firm evidence that was before them, they fell to claiming that the legislation was wrong, and (ignoring the facts that contradicted their claims about the Legislature’s intent) they relied on wishful thinking – and unsupported “guessing” – to avoid further discussion:

    • “They didn’t reflect it properly in the legislation.”

    • “But then we’re … guessing on what the intent is … .”

    When I asked that they arrange a promised meeting to review and to discuss their claims in the light of the hard evidence, they backed away from their previous undertaking:

    • “… I don’t think a further meeting to discuss legal interpretations is warranted.”

    Taken together, the words and the actions of bureaucrats suggest that they refuse to accept:

    • that officials are legally bound to act on the basis what the legislature confirmed;

    • that the laws must be interpreted in accordance with the rules of statutory interpretation that have been confirmed by the courts;

    • that the “intent of the legislature” must be determined on the basis of hard evidence rather than on the basis of the wishful thinking or the “guesses” of bureaucrats; and

    • that officials must adhere to the ruling of the Supreme Court that dictates that any doubt about the meaning of the statutory wording or the intent of the legislature must lead to an interpretation that favours the taxpayer:

    o “any reasonable uncertainty or factual ambiguity must be resolved in favour of the taxpayer …”.

    DETERMINED TO BE ABOVE THE LAW

    Contrary to the requirements of the law and the Rule of Law, officials appear to have decided that they and the government have the right to do whatever they want to do – that they and the government are above the law – and that they and the government can administer the law in any way that they please – and that they can abuse the powers of public offices to do damage to citizens and to effect a cover up.

    JUST ONE MORE MINISTER DOING WHAT OFFICIALS TELL HIM TO DO

    Unfortunately, some 18 months after I first approached his office, Mr. Gravelle has fallen compliantly into line with the self-interested, authoritarian and law-destroying view of his bureaucrats.

    He is not the only Premier or Minister to have been misled by officials in that way:

    • One previous Minister signed a letter prepared by officials that was intended to discredit me with other legislators – and that did so by misusing and misrepresenting private information about me – in breach of the privacy laws.

    • One previous Premier failed to act on the complaint about the illegal taxation and about the breach of the Privacy laws. That led to a formal complaint being made to the Information and Privacy Commissioner, and to a formal finding from that Office that confirms that breach of the privacy laws, and that Minister was forced to resign.

    • Another previous Minister, in your own government, (as noted above in this letter) signed a letter that confirmed an offer to pay me $10,000 on the condition that I would falsely agree that my complaint that officials had broken the law had been resolved.

    The letter that Mr. Gravelle has personally signed conveys the unmistakable impression that he sees my expectation that he and his Ministry will do what the law requires them to do as an obstacle to progress.

    Like his bureaucrats, he completely avoided the evidence that I had put before him that shows, unequivocally, that the claims of his officials are based on blatant and serious misrepresentations of the legal facts and the requirements of the law. Simply, he would not discuss the matter:

    • “I believe that I understand your position and that you understand our position. … I have no reason to believe that any meeting between us would be productive, and therefore I must decline your request to meet.”

    Unfortunately, his remarks do make his position very clear. He absolutely refuses to discuss the legal facts and the hard evidence that shown that the claims of officials are false and that officials broke the law. Instead, he wants me to tell him how much “compensation” I would be prepared to accept:

    • “At my instruction, my Chief of Staff has twice attempted to engage you on the topic of compensation, and you have declined to elaborate … .”

    As I had previously pointed out to Mr. Gravelle, the amount of compensation that is owed to me for the taxes that have been illegally levied and for the damage that officials have done by the additional illegal and abusive acts in which they have engaged (to deny me my rights) is a secondary matter. The matter of primary importance is that the law-breaking by his Ministry must come to an end.

    If officials continue to abuse their powers so as to continue to break the law, and if they persist in trying to cover up the damage caused by the illegal taxation and confiscation of lands and/or minerals – both as that affects me and as it affects other persons – then the illegality remains, and what officials might want to describe as “compensation” would have to be properly seen as just another attempt to bribe.

    If I was to agree to accept such “compensation” I would effectively be agreeing that those in government have the right to break the law with impunity, to harm the rights of citizens and to abuse the funds of the public and the powers that are attached to the positions of public trust that they occupy to cover up the illegal actions of officials.

    It appears, however, that that is precisely what Mr. Gravelle and his officials would like me to do.

    A KNOWING DECISION TO ENGAGE IN A COVER UP

    Mr. Gravelle’s Chief of Staff made it clear that his Minister would PREFER not to have to engage in a cover up:

    • “… my Minister will [not] take any pleasure in … covering up for the past misdeeds of previous Ministers and the Ministry”

    However, he also left doubt that the Minister WOULD BECOME INVOLVED IN A COVER-UP NONETHELESS – rather than acknowledge the legal error and take the corrective action that the law requires:

    • “ … because government has a huge problem admitting that it made mistakes … and it would rather give you money and not admit than admit it – even if its going to cost them more money.”

    COVERING UP ON A LARGER SCALE

    Mr. Gravelle’s actions and proposals with respect to Bill 173 (An Act to Amend the Mining Act) provide additional evidence that he is committed to a course of covering up the illegal taxation and treating citizens who are in similar situations in very different ways.

    That is, his proposals clearly confirm that he does not intend to stop the illegal and inequitable taxation and confiscations. He has no intention of doing the right, just, equitable, honourable and law-respecting thing in respect of all of the property owners who have been treated in an unjust, inequitable and illegal way.

    The proposals that he has put forth in that Bill would not undo the damage. Instead, they would perpetuate the levying of the arbitrary, abusive, inequitable, discriminatory and unlawful treatment, and they would serve to continue to allow officials to hide behind the complexity of the legal facts, to continue to levy the extortionary tax, and to continue to cover up their involvement in the illegal taxation and confiscation of minerals under a small percentage of private lands.

    SEEKING THE POWER TO UNDERMINE THE CHARTER AND THE LAW

    The proposals that he has made leave no doubt that he wants the legislature to approve provisions that would allow him alone (no doubt on the “advice” of his officials) to be able to decide who is to be taxed and who is not. His proposals leave no doubt, either, that he intends that his decision can not be open to any challenge by any person or by any court:

    • “The decision of the Minister … is final.”

    That gives just one more example of an evident contempt for the provisions of Canada’s Charter of Rights and Freedoms, for not only would that deny individuals the protection of the law and the courts, it would also deny them their Constitutional right “to the equal protection and equal benefit of the law without discrimination”.

    All told, the bureaucrats, and the Ministers whom they lead, have shown a firm determination to violate not simply the law, but also the obligations that the courts have confirmed that they bear:

    • “… to deal fairly and openly with all taxpayers and to administer the Act in accordance with the law.”

    STILL LOOKING FOR TRUTH, HONOUR AND RESPECT IN GOVERNMENT

    I would like to believe that our government is still a place where a very high importance is placed on the notions of truth, honour, respect – and even simply on a commitment to law and to the rule of law.

    But those values deal with concepts that that some of the most senior officials of the Province, and some members of your own government, appear to have absolutely no grasp.

    Instead, it appears, as Minister Gravelle’s Chief of Staff so clearly said, that “the reflective self-interest of organizations” guides what many public officials and many government Ministers do.

    My experience over the past 20 years points to some key officials and Ministers being prepared to abuse the powers of the public offices that they hold, and to act in breach of public trust.
    In having persisted, for almost two decades, in refusing to act as the law has required them to act, Ontario’s officials have shown a determined contempt for the rights of citizens, a total disregard for the requirements of the law and a firm commitment to covering up the illegal actions in which officials have engaged.

    I have exhausted all other options with officials and with the Minister whom you have put in charge, and so it is up to you to put it right.

    I am coming back to you, Mr. McGuinty, in the fading hope that there is some way to penetrate the bunker of intransigence in which government officials and Ministers have barricaded themselves, and to get past the wall of defensiveness that your own staff have built around you.

    • I am doing this in the recognition that the position that you hold at the head of government imposes a duty upon you to uphold the law and to bring the illegality, deceit, dishonesty, and cover up to an end.

    REAL AND LASTING DAMAGE – AND OF A MUCH BROADER TYPE

    Without diminishing the seriousness of any of the particular offences in which officials have so persistently engaged, I point out that the damage that officials have caused – and that they continue to cause – is far worse than the mere breaking of a law and the covering up of that breaking of the law, and far worse than the illegal taxation of my property and the illegal confiscation of the property of other citizens of the Province.

    What Provincial officials have done has inflicted real and lasting damage on the integrity of government and its institutions. They have engaged in the determined and persistent abuse of positions of public trust not simply to break the law – but to perpetuate and extend the damage.

    The abuse of power and the breach of public trust is the real crime, here – for the institutionalization of law breaking as acceptable practices by government officials will have ongoing effects on all of us – and on all of our children, by undermining the Constitutional and legal principles upon which Canada claims to be founded.

    ASKING YOU TO PUT THIS RIGHT

    It is time for you to decide whether you will restore the government to its constitutional place – under the law – or whether you, like your officials and Ministers, will be a violator of the law, a denier of the principle of the Rule of Law that underpins our Constitution and our Charter, and a destroyer of the foundation of law, equity and justice upon which the legitimacy of government is based and upon which our lives and our security, and that of our children, depends.

    If, through your own inaction, you add your name to those public officials who act to undermine the rule of law and to violate the most important public trust that is attached to the position that you occupy, you condemn yourself when measured against the law – and far worse than that, you condemn all of the citizens of the Province to a damaging future where officials and governments can take it for granted that they can freely violate the law.

    You have the duty and the power to stop the illegal and abusive actions by provincial officials and to undo the damage that was done to the rights of many citizens of the Province. I hope that that is what you would want to do – and that that is what you will do.

    I ask that you meet with me, within three weeks, so that you will get the facts and the message about what needs to be done first hand – unfiltered and undistorted by any of those who have shown a determination to perpetrate the cover-up and to act on the basis of “reflexive self interest” – and who, in pursuing their abusive and self-serving course, have demonstrated their contempt for truth, for justice, for law and for the most basic rights of the citizens of Canada and Ontario.

    That meeting will give you a solid basis upon which to ensure that a just and law-respecting outcome is put in place – for everyone concerned – and without any further delay.

    The illegality that your officials and your Minister wants to cover up is blatant, the damage to citizens and to the law and to the integrity of government is real.

    You have a duty to put things right. The solution is simple and straight forward, and it is neither costly nor damaging to the government to implement.

    The time to fix this is now.

    Yours Sincerely,

    Charles Ficner

    …Appendix

    Appendix: Public, Political and Media attention on this and related issues

    In 1994 a major media storm developed over the fact that Shelley Martel had been found to have broken the privacy laws in connection with the efforts of officials to cover up the illegal taxation and confiscation. The primary focus of the media at that time was on her breaking the privacy laws rather than on the issue that led her to try to discredit me and my case. She was forced to resign.

    In 2007 and 2008 serious public controversies arose because provincial officials allowed prospectors to lay claim to the minerals under a vast amount of private and public land in Eastern Ontario. Major public protests took place, many citizens were charged with obstructing access to the site, and one Algonquin leader, Bob Lovelace was jailed. Massive legal issues remain as a result of those protests and the resulting multi-million dollar law suits that ensued.

    In 2009, W5 ran a programme on the unjust treatment of property owners, on the inequitable and illegal taxation of property, and the discriminatory confiscation of minerals from some land owners. During that programme, Minister Gravelle gave an undertaking to ensure that property owners were assured that their property was secure, and he promised to resolve the dispute with me in a satisfactory fashion. He has not lived up to that promise.

    The matter of the illegal taxation of my property has been the subject of a programme on “The Agenda with Steve Paikin”. At that time, Minister Gravelle had not yet taken a position on my appeal to him, and so the situation was still “wait and see”. Mister Gravelle has not resolved the matter. Instead, as outlined above, he has acted to cover up the illegal taxation and confiscations.

    Some of the proposals put forward by Minister Gravelle in Bill 173 – to “modernize” the mining Act – and to “find a balance” do not resolve the problems. Instead, the proposals made by Mr. Gravelle serve to cover up the illegal taxation and confiscation.

    Many citizens, property owners, environmental groups, associations of cottage owners, municipal governments (including Ottawa, Kingston and Peterborough) have formally petitioned the Province to change the Mining Act by incorporating the Three MODEST Proposals that have been advanced by the Coalition for BALANCED Mining Act Reform. The proposals outlined in this letter are identical to the first of those Three MODEST Proposals that have found such wide support.
    Bill 173 does not respond to any of those proposals.

    Presentations about the failings of Bill 173 in respect of these matters have been made to the Parliamentary Committee on General Government that is considering the proposals put forth by Minister Gravelle in Bill 173. The records of those presentations can be found in the transcripts of the committee hearings that took place in August this year. I draw your attention, particularly, to the hearings that took place in Toronto on August 6, 2009, and in Timmins on August 13, 2009. The written submissions given to the Committee provide more detail, and those can be obtained from the Committee Clerk, Trevor Day. Note, as well, the clause-by-clause analysis provided by the Coalition for BALANCED Mining Act Reform.

    Deep concerns persist about the way in which the government allows mining firms to harm the rights of citizens, and that concern is widespread in the broad public, among municipal leaders, in first nations communities and even among those who are involved in the mining industry, about the perceived major failures of Bill 173 to put mining into a proper balance – and to avoid the conflicts that the practices of officials have caused between, on the one hand, citizens, municipalities, environmental authorities, farmers, land and cottage owners and first nations peoples, and, on the other hand, those who engage in mining activities. That has been touched on in much local media.

    Despite the promises made by the Premier and his Ministers to put mining into balance, and to bring mining into the 21st century, the proposals actually made in Bill 173 do not come close to meeting those promises or to resolving the problems.

    The issues arising from the illegal taxation and confiscation of lands are far from resolved.

  14. For what I called ‘version of the code-script’ -be it the original one or a mutant one -the term ‘allele’ has been; adopted. ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s