History of the Ontario Mining and Lands Commissioner

Introduction

In 1992, when I was first appointed as Mining and Lands Commissioner, there was no single publication in existence which provided any sort of overview to explain the current nature of this old and important function. Even tracking down the actual jurisdiction for me or anyone wishing to deal with the Office was a challenge, with responsibilities found not only in statute and regulation but even in an Order in Council, something which was not readily accessible or widely known. Over the years, learning from a considerable body of case law, those very able statutory officers of the legislation within my jurisdiction and parties and their representatives appearing in front of me, I have developed a healthy respect for the unique and breathtakingly complex entity which is the Office of the Mining and Lands Commissioner. I could not help but wonder that if I experienced such challenges to become informed, how were the lawyers acting on behalf of parties to regard this Office? My overriding concern has been for the parties and in particular the prospectors and junior mining companies in seeking to ensure that its long historic tradition and experience be permitted to remain intact.

I commissioned the writing of this history in the firm belief that the current status and role of the Mining and Lands Commissioner cannot properly be understood without a thorough understanding of the legislative vehicles used, selection of the "commissioner" and one time "judge" as the decision-maker, the history of the development of the legislation and relevant case law, all framed within the larger constitutional law context. To arrive at an informed appreciation, an analysis of what it means to be a "commissioner" is necessary as there is often the tendency to confuse it with "commissions", commonly understood as forming part of the group of agencies, boards and commissions within the context of administrative law. A commissioner is but part of the august group of magistrates, justices of the peace or inferior courts which have a long history in English jurisprudence. Similarly, it is necessary to examine the history of the role of the Commissioner and one time judge through an examination of relevant developments in constitutional law which ran parallel to its own early legislative evolution. My goal throughout has been a complete understanding of the Office of the Mining and Lands Commissioner as it exists today.

In carrying out its functions under the Mining Act, the Mining and Lands Commissioner was characterized in the late 1950s by the Supreme Court of Canada as an inferior Court of appeal or review and somewhat more recently in the late 1990s by the then Ontario Court (General Division) as the Mining Court, having exclusive jurisdiction over any matter arising under the Mining Act and concurrent jurisdiction with what is now the Superior Court of Justice (General Division) in proceedings brought involving private civil and property rights relating to or arising out of matters governed by the Mining Act. Still, some confusion exists around whether the Mining and Lands Commissioner is wholly an administrative law entity, although to be fair, the Office has never been listed as an agency, board or commission, or been made subject to most of the statutory reforms associated with such entities.

Throughout the writing of this short history, it has been my privilege to review, comment and discuss with its author, Marianne Orr, current Deputy Mining and Lands Commissioner and sometime counsel to the Office during my tenure, many of the points raised and cases referred to. Upon becoming increasingly familiar with constitutional cases dealing with the jurisdiction and constitutionality of inferior courts, greater insight became available for the drafting and interpretation of the Mining Act. What also became apparent was that many of the more recent amendments were crafted without the benefit of this historical appreciation and I believe to the detriment of the legislation and those seeking to appear under it. The process has provided me with a greater and more subtle understanding of the judicial intent found in those cases which directly examined the status of the Office. Each re-reading has provided new levels of comprehension which cannot be obtained from simply referring to the cases themselves or relying, in the case of Dupont v. Inglis, on the Supreme Court of Canada decision in isolation.

I am pleased with the end result, but not merely for its content and analysis. The short history is imbued with an enthusiasm and zest which, in my experience, I have come to count on from those dealing with this exciting and unique Office.

Linda M. Kamerman
Mining and Lands Commissioner
Toronto, Ontario
May 1, 2006

Preface

This short history came about as a way of celebrating the fact that the Office of the Mining and Lands Commissioner will have been in existence, as of May 2006, in one form or another, for one hundred years. The legislation that deals with the vast mineral resources in Ontario dates back to 1864.

It goes without saying that the opinions expressed in this paper are those of the writer only, and do not necessarily reflect the opinions of the Office of the Mining and Lands Commissioner.

The Mining Act is a formidable piece of legislation and it has formed the background to a myriad of mining recorders' decisions and stakers' tales that could fill volumes. In the same sense, treating the history of the Mining and Lands Commissioner in such a brief manner fails to do it justice. It’s fitting though that the Mining and Lands Commissioner, after having dealt with so many decisions and tales for one hundred years should be recognized in some way – if not for the staying power, at least for the importance of the work entrusted to this statutory officer. The Commissioners of the past were men and this history reflects that fact in the telling. Times change, and this history reflects that as well.

Marianne Orr
Deputy Mining and Lands Commissioner
Guelph, Ontario.
March 1, 2006

Executive summary – a short history of the Ontario Mining and Lands Commissioner

The Mining Convention of 1905 followed on the heels of an exciting silver discovery in Cobalt, Ontario in 1903. It was felt that mining activity needed to be more regulated and that a Mining Commissioner should be appointed to decide disputes between claimants. The result was the Mines Act of 1906. While there had been mining laws in Ontario dating back to 1864, the Mines Act of 1906 was a comprehensive revision and update to those laws.

Legislators looking for a suitable template for the Mining and Lands Commissioner turned to the legislation establishing the Drainage Referee (The Drainage Trials Act, 1891) for their inspiration. The major difference between the two was that mining dealt with the disposition of Crown property and associated unpatented rights which had not been dealt with by the ordinary courts while drainage dealt with ordinary property, claims and rights which would otherwise be heard in the ordinary Courts.

The word "commissioner" finds its origins in old English law. A commissioner was the representative of the king’s or queen’s authority in a particular district in the country. The appointment of a Mining Commissioner in Ontario was intended to bring law and order to the mining community. The Commissioner was ex officio a justice of the peace and could deal with a variety of matters ranging from ordinary mining issues to the issuance of writs and special orders for the arrest and detention of judgement debtors. The Commissioner also had the powers of and could act as an official referee under the Judicature Act and the Arbitrations Act. The Commissioner appointee had to be a barrister of at least ten years' standing and was deemed to be an officer of the High Court. This treatment of the Commissioner as a judge sitting in a court was further enhanced with the enactment of the Mining Court Act in 1924. In 1956, the title of Mining Commissioner was restored and, with the exception of changes under the Ministry of Natural Resources Act in 1973 (adding the word "Lands" to the title) the title has remained unchanged to this day. The Mining and Lands Commissioner no longer hears matters under only the Mining Act, but can expect to be called upon to deal with matters arising under the Aggregate Resources Act, the Conservation Authorities Act, the Oil, Gas and Salt Resources Act, and the Assessment Act and as the designated hearing officer under the Lakes and Rivers Improvement Act.

Over time, the jurisdiction of the Mining and Lands Commissioner has been the subject of careful analysis by all levels of court. Notable cases include McLean Gold Mines and Re Munro and Downey. The question asking whether the Commissioner was acting as a superior court contrary to the British North America Act, 1867 was dealt with in the case of Dupont v. Inglis which came before the Supreme Court of Canada in 1958. That Court equated the Mining Commissioner with an "inferior court of review or appeal". While the issues at every level focused primarily on the question of whether the Mining and Lands Commissioner was acting as a superior court, the courts hearing the appeals, in their approaches to the question, also posed another question as to whether the Mining Commissioner was a court or an administrative tribunal. In each instance, they found that the Commissioner was a court.

Dupont v. Inglis (1958) marked the end of a chapter in the history of the Mining Commissioner as it was followed by a series of legislative changes that found their origins in the government’s review of individual civil rights at the hands of regulatory bodies. Implementing the recommendations of the McRuer Report, (which came out in installments starting in 1968 and which directed its attention to the practices of courts, agencies, boards and commissions), resulted in various legislative changes as well as the creation of the Statutory Powers Procedure Act.

While the rules governing practice and procedure before the Mining and Lands Commissioner can be established by regulations made by the Lieutenant Governor in Council under the Ministry of Natural Resources Act, this has not been done. The Mining and Lands Commissioner has relied on those provisions set out in the Mining Act and the Statutory Powers Procedure Act dealing with procedure, although reference has been made to the Rules of Civil Procedure from time to time.

The original intention behind establishing a Mining and Lands Commissioner was to create a functionary who would deal with disputes under provincial mining legislation. The legislators recognizing that an independent judicial officer was needed (as opposed to ministers) to hear disputes. The presence of such an official would also free up ministers who were having to deal with increasingly time-consuming cases and would offer an accessible and affordable venue for members of the mining industry who obviously needed an adjudicator to quickly and effectively sort out their disputes. The Mining and Lands Commissioner is assisted by deputies and, in addition to being called upon to deal with matters arising under legislation other than the Mining Act, can also expect to hear what used to be called summary conviction cases (now provincial offences).

The evolution of the MLC's powers and responsibilities over the years has created a legislative ambiguity that affects parties' perceptions of whether the Commissioner is a court or an administrative tribunal. Perceiving the Commissioner’s original identity as an inferior court of review has been made difficult by the addition of administrative tribunal responsibilities and by the legislative requirement that procedural decisions be made in compliance with the Statutory Powers Procedure Act.

These are the words of an Ontario deputy minister of mines written in 1933. His name was Thomas Gibson and he was writing a small book on the mining laws of Ontario and the Department of Mines. The book was intended to be historical in nature; however, one senses that he was holding back on an urge to match his words to the excitement he obviously felt describing a growing mining industry in the province.

The discovery of a silver deposit at Cobalt, Ontario, in 1903, that was apparently on par with deposits in Mexico, South America and the United States, prompted a flurry of government policy and law-making to deal with the growing public demand to test and stake its riches. And the riches were great if Mr. Gibson’s words are to be believed. "…one after another, veins were opened up containing 8,000, 10,000, or even 12,000 ounces of silver to the ton, and … carloads of 30 or 35 tons of such material brought return to the owner of as much as $120,000 or $130,000 each." Mr. Gibson further observed, "[t]he mining laws were a fruitful topic for discussion and controversy." In 1905, a change in government brought demands for a change in the law.^{footnote 2[2]}

Gibson gives special treatment to the Mining Convention of 1905 in his book, and for good reason. While other conventions had been held in the past in other locations, this convention lasted for four days and took place in Toronto, Ontario, in the Parliament Buildings themselves. Delegates from the northern cities met with their southern counterparts. While the opinions were said to be wide-ranging, the consensus was that a uniform method of acquiring mining lands from the Crown was needed. The delegates came up with some twenty-nine regulations ranging from the need for one uniform mining law for the whole province to settling on the size of claims and building a refinery for silver and cobalt ore. One regulation would stand out. A Mining Commissioner would be appointed to decide disputes, his decisions being subject to appeal to the Court of Appeal.

The Government of the day responded to the convention regulations with the creation of a new law – The Mines Act of 1906.^{footnote 3[3]} Thomas Gibson describes the changes brought about by the Act as "momentous".^{footnote 4[4]} Decentralization of the administration of mining lands was certainly new, as was the uniform treatment of all mining lands wherever they were situated. Claim sizes, working conditions, terms of a licence, and more, were some of the many topics covered by the new Act.

The appointment of a Mining Commissioner was an "important innovation" in Mr. Gibson’s words.^{footnote 5[5]} A review of the legislation and government administration up to that point certainly supports this opinion. Until 1906, statutory officers appointed by Order in Council with the powers of a justice of the peace had settled disputes and convicted offenders under the Act involving unpatented mining lands. They worked within mining divisions and under the direction of the Commissioner of Crown Lands.^{footnote 6[6]} Disputes dealing with important issues ended up before the Deputy Minister of Lands and Forests and the Deputy Minister of Mines within the Department of Lands, Forests and Mines. These cases required an actual hearing and could take these officials away from their regular work for extended periods of time thereby slowing down the work of the department. Apparently the silver discoveries in Cobalt had this effect. The establishment of a Mining Commissioner would free up these officials and since the Commissioner would also be independent of government, this would dispel the feeling that political influence affected the decision-making process.^{footnote 7[7]}

The importance of the Mining Commissioner to the industry is evident in the words of Samuel Price, the first Mining Commissioner, who in 1910 took great pains to catalogue the cases that were growing in number and complexity. In the Preface to his collection of mining cases for the years 1906-1910, he writes, "I am much indebted to the practitioners whose names most frequently appear in the reports of cases for assistance rendered in reaching decisions upon new and difficult points, in what was essentially a new field of law."^{footnote 8[8]}

A history of the Mining and Lands Commissioner would be incomplete without a discussion of the history and meaning of the word "Commissioner" itself. While today the word is often lumped together with the phrase "agencies, boards and commissions", its derivation is actually found in the history of provincial courts.^{footnote 9[9]} One has only to look at the English tradition of vesting local administrative functions in justices of the peace to realize that this may well have played a role in the province’s attempt to fashion a suitable decision-making body designed to maintain law and order in the mining industry.^{footnote 10[10]} In fact, cases dealing with questions of provincial jurisdiction, sections 92 and 96 of the British North America Act, and provincially appointed judges frequently make reference to what is sometimes described as "the ancient and well recognized powers of magistrates and justices of the peace in Ontario prior to 1867 to enforce preventative justice…."^{footnote 11[11]} Often this power was one that was concurrently held by inferior courts and superior courts.^{footnote 12[12]} The empowering of magistrates and justices of the peace certainly was the practice prior to 1906; it would have made sense to carry on with the practice when it came time to establish the Commissioner’s office in 1906.^{footnote 13[13]}

A review of modern references to the word "commissioner" offers little help in the understanding of the origins of the word as it applies to the Mining and Lands Commissioner. For example, the McRuer Report described a "commissioner" as "one holding a commission from Her Majesty".^{footnote 14[14]} This can apply to a wide range of tribunals and individuals ranging from commissions of inquiry and commissioners for oaths to the now non-existent Commissioner of Crown Lands. Other references are more helpful. For example, the Dictionary of Canadian Law in its definition of the word "court" includes "commissioner" along with "judge, arbitrator, umpire, provincial judge, justice of the peace or other office or person having by law or the consent of the parties authority to hear, receive and examine evidence".^{footnote 15[15]}

The Evidence Act treats the Mining and Lands Commissioner as a court for the purpose of the recognition of judgments across the country.^{footnote 16[16]} These references are probably more accurate in the sense that they recognize the history of the office. Indeed, the office after which the Mining and Lands Commissioner was modeled (the Drainage Referee) bears all the trappings of a court.^{footnote 17[17]} Historically, the Mining Commissioner was required to be an officer of the court (as the Drainage Referee is to this day) since he could find himself sitting in judgement of someone charged with an offence under the Act. Strangely enough, while that function remains, the requirement of having an officer of the court sitting in judgement disappeared from the Mining Act in 1956.^{footnote 18[18]}

The association of the word "commissioner" with "judge, arbitrator, umpire, provincial judge, justice of the peace …" and so on is also in keeping with the treatment the word received in cases pre-dating confederation and in the early 1900's. The word "commissioner" itself pre-dates Confederation and refers to a judicial officer who seems to have been charged with ensuring the smooth administration of all matters relating to Crown resources and interests. The keeping of the peace, the collection of revenue, the overseeing of land grants and the control over timber are just some of the matters that commissioners would have been charged with such administration throughout the British Commonwealth. The Commissioner of Crown Lands is a good example from Ontario’s early history.^{footnote 19[19]} Duff, C.J. put it as follows in the Reference re Adoption case; "… throughout the whole of this country magistrates daily exercise … judicial powers of the highest importance in relation more particularly to the criminal law, but in relation also to a vast body of law which is contained in provincial statutes and municipal by-laws. The jurisdiction exercised by these functionaries, speaking generally, touches the great mass of the people more intimately and more extensively than do the judgements of the Superior Courts…."^{footnote 20[20]}

This link to the world of courts and judges pre-dates Confederation and the reason is obvious when reading the preamble to The Gold Mining Act of 1864; "Whereas gold has been discovered in this Province…." One can imagine the excitement. The competition to discover and then develop gold bearing properties must have been intense. The Gold Mining Act was intended to keep the prospectors and industry in line. Officers working under the direction of the Commissioner of Crown Lands acted as justices of the peace within their divisions and could appoint Constables to keep the peace. People found removing stakes could be imprisoned. Liquor and beer sales were licensed depending on their proximity to the mining of gold. Any Gold Mining Officer could convict and punish (incarceration being one method of punishment) in accordance with the Act and Regulations. The Act was indeed a reflection of its times.

Time passed, issues became more complicated, and The General Mining Act of 1869 eventually replaced The Gold Mining Act. With Confederation the political landscape had changed as well. However, the need for a self-contained administrative system that could deal with everything that went with the discovery of valuable minerals never diminished. It would continue to become more important over time until The Mines Act emerged in 1906. Thomas Gibson’s "important innovation" in the form of a Mining Commissioner was the culmination of over thirty years of legislative thought and tinkering. The court-like characteristics first seen in earlier legislation were retained and further enhanced in this specialized court.

In the 1906 statute, the Mining Commissioner was deemed to be an officer of the High Court and was required to be a barrister of at least ten years' standing. "He" (reflecting the grammar of the day), was to have the powers of a Judge of the High Court of Justice and his jurisdiction extended to such things as actions of trespass, ejectment, suits of specific performance, suits of winding up or dissolution of mining partnerships, and for orders dealing with injunctions or mandamus. The Mining Commissioner could issue writs for the arrest of judgement debtors and had all the powers of an "official referee" under The Judicature Act and The Arbitrations Act. The Mining Commissioner was still ex officio a justice of the peace. As in previous legislation, the prosecution for the punishment of any offence under the Act could take place before the Mining Commissioner.

In keeping with the treatment of the Mining Commissioner as a judge, the legislation set out a procedural system for the administration of trials. County Courts provided the place for sittings and the local clerk acted as the keeper of the exhibits and records. Fees were paid in stamps as in the courts. The Mining Commissioner, like the courts, could frame his own rules of proceedings and have them published in the Ontario Gazette. In fact, the procedures for matters heard by the Mining Commissioner were seamlessly interwoven into the County Court procedural setup so that the clerk of a county court could issue a subpoena for the attendance of a witness before the Mining Commissioner.

The integration of County Court and Mining Commissioner (at least as far as office administration was concerned) continued with the amendments made to the Act in 1907.^{footnote 21[21]} For example, a certificate of lis pendens, which could be issued by a Mining Recorder and which signified that a suit or action had been instituted calling into question any interest in an unpatented mining claim, could be vacated only by the Mining Commissioner – or, in his absence, a County or District Court Judge.

In 1908, The Mines Act was consolidated and amended. In repealing it, the government of the day brought in The Mining Act of Ontario.^{footnote 22[22]} The Commissioner’s office retained the characteristics of a court and the Act continued to provide an all-encompassing dispute settling mechanism for the industry. The retention of interaction between the Commissioner and the courts meant that orders issued by the Commissioner could be filed in the High Court of Justice or District Court of the County where the lands were located and become an order of that court.^{footnote 23[23]}

In 1908 the wording that resembles section 105 of the present Act made its debut.^{footnote 24[24]} What is notable about the section is that it became the centre of attention in a spate of cases where the Commissioner’s jurisdiction was challenged on the grounds that he was deciding questions that only a Superior Court could deal with. The first of these is McLean Gold Mines.^{footnote 25[25]} Decided by the Commissioner and then the Supreme Court of Ontario in 1923, the McLean case is notable not only for the constitutional arguments that ensued, but also for the words used by the Court in describing what exactly it was dealing with in terms of the Commissioner.^{footnote 26[26]}

In deciding that the Commissioner did not have the authority to deal with something that belonged in a superior court, Justice Ferguson in the Appellate Division of the Supreme Court of Ontario said:

The decision also provides an historical nugget in the form of reasons provided by Chief Justice Meredith who came to a different conclusion on the point of jurisdiction. He died after hearing the case but prepared his judgement before passing. After reviewing the main issue of forfeiture for the non-payment of mining taxes he said, in part:

In 1924, the then Mining Commissioner, Thomas Ernest Godson, K.C., was appointed a judge through legislation entitled The Mining Court Act, 1924. Not surprisingly, section 123 of The Mining Act of Ontario was repealed.^{footnote 29[29]}

One would expect that a constitutional issue might arise out of having the judge of the Mining Court appointed "as provided by The British North America Act, 1867" and having "the same powers as a Judge of a Superior Court sitting in a civil case".^{footnote 30[30]} It never happened. In fact, in the three most important cases dealing with the jurisdiction of the Commissioner, this section was not controversial. Although the Supreme Court of Canada in Dupont v. Inglis did say it was of no importance in the scheme of things.^{footnote 31[31]}

In 1927, The Mining Act was revised and consolidated and references to the Judge of the Mining Court replaced any previous references to the Commissioner. The whole of The Mining Court Act, 1924 was repealed except for subsections 5 (3), (4), and (5) which continued the role of the Mining Commissioner as Judge of the Mining Court.^{footnote 32[32]} The legislation for the most part mirrored the sections originally set out in The Mining Court Act, 1924. For all intents and purposes, those appearing in front of the decision-maker under The Mining Act were appearing before a judge who had the same powers as a superior court judge in a civil case.^{footnote 33[33]} Proceedings could be transferred to the Supreme Court upon application to that court. The requirement that the Judge of the Mining Court had to be a barrister of at least ten years standing at the bar of Ontario was continued. Very little in terms of substance had changed over the time that the Act had been worked on between 1908 and 1927. The legislation addressed everything from where the hearing would be held (in a court house where available) to the amount of conduct money that would be paid to a witness (according to the then county court scale).^{footnote 34[34]} Strangely enough, there was no change to the jurisdiction dealing with matters after the issue of a patent despite the fact that the Court in McLean had ruled that jurisdiction over the issue of patents through fraud or error could be exercised only by a superior court.^{footnote 35[35]}

While the McLean case seems to have had no immediate effect on the jurisdiction of the Commissioner, there had in fact been some judicial rumblings expressed in 1909 in the case of Re Munro and Downey.^{footnote 36[36]} The jurisdiction of the Commissioner was raised there as a potential issue for argument when Munro appealed the Commissioner’s dismissal of his dispute to the Divisional Court. It was withdrawn, but not before causing comment from the bench. In dismissing the appeal, Justice Britton said "[t]he appeal should be dismissed with costs, but without prejudice to any action or proceeding that the appellant has taken or may take to question the jurisdiction of the Mining Commissioner or the validity of the Act of the legislature of the province of Ontario authorizing the appointment of an officer with the powers of a Judge."^{footnote 37[37]} While Justice Riddell had a bit more to add to the discussion, his words only ending up tantalizing the reader with what they do not say. "The appellant served notice that he would contend upon the argument that the Mining Commissioner had no jurisdiction in the premises, because the local legislature acted beyond its powers in constituting such an office. This contention was not pressed upon the argument and in my opinion could not successfully be urged. I thought we should dispose of the point, but as the remainder of the Court decided that the matter might be left open, I pay no further attention to it...."^{footnote 38[38]}

It was not until 1955 when a Mining Recorder in Sault Ste. Marie received and placed "on file only" four applications of Alfred E. Dupont to record a restaking he had made of four previously staked and recorded claims that the issue ran the full gamut of judicial scrutiny and discussion, ending up before the Supreme Court of Canada in 1958 with the case of Dupont v. Inglis.^{footnote 39[39]} Dupont v. Inglis is sometimes cited in cases dealing with the differences between courts and administrative tribunals. This may be due to the fact that the appellate courts posed the question as to whether the Commissioner was a court or an administrative tribunal. In both instances, reliance was placed on the case of Re Ashby to say that the Commissioner was a court and that it functioned as a court.^{footnote 40[40]} Indeed, the Supreme Court of Canada seems to have no difficulty in describing the Commissioner as an "inferior court of review or appeal".^{footnote 41[41]} The courts at all levels were solely concerned with the question of whether an inferior court created by the province to administer all aspects of the mining resource industry had overstepped the constitutional boundaries set out in the British North America Act. Calling up the administrative tribunal question was perhaps the courts' way of putting to rest the issues that had arisen out of the Privy Council decision in Toronto Corporation v. York Corporation and the thought that administrative tribunals like the Municipal Board could not function as courts.^{footnote 42[42]}

The case started out before the Mining Recorder in 1955 and the Act of the time (The Mining Act, R.S.O. 1950, c. 236) still called for the appeals from the Recorder to be heard by the Mining Judge. The appeal from the decision of the Mining Recorder opened before the Judge on May 29^th, 1956 and was adjourned on the 30^th. On June 1, 1956 The Mining Amendment Act came into force bringing with it new wording and a new judicial officer - the Mining Commissioner.^{footnote 43[43]} Perhaps the appellants had seen the changes as presenting them with a clean slate. After all, not only was the Act changing, but the judicial "face" was as well. Gone was Judge Godson and in his place was a newcomer, James Forbes McFarland. The amending Act had removed the requirement for the Commissioner to be a barrister and solicitor. Commissioner McFarland had started his career in 1916 in the Bureau of Mines working as a "student messenger". He made his way up the bureaucratic ladder eventually becoming secretary to Thomas Gibson, the deputy minister of mines. Commissioner McFarland would hold the office of Mining Commissioner for 16 years until his retirement in 1972.^{footnote 44[44]}

When the respondents in Dupont v. Inglis busied themselves with trying to get an appointment with the new Mining Commissioner to fix a date to receive directions on how to continue their appeal, the appellants opposed their action for three reasons. First of all, the Mining Court had ceased to exist as a result of statute law; purely judicial functions would be merged in or automatically transferred to the Supreme Court of Ontario. Secondly, despite the exclusive jurisdiction over mining disputes given to the Commissioner through Section 115 of the amending Act, as far as the appellants were concerned, the only jurisdiction the Commissioner had was to correct procedural mistakes made by a Mining Recorder. This was an administrative function that might be partly judicial. The third reason was that the parties themselves could not increase the Commissioner’s jurisdiction through consent.^{footnote 45[45]} The appellants' application to transfer the matter to the Supreme Court of Ontario (opposed of course by the respondents) was refused by the Commissioner. The appellants followed with a motion for prohibition to the Supreme Court of Ontario.

By this time the parties to the case included the provincial and federal Attorneys General. After taking the parties through a fairly thorough history of the mining legislation as well as the history of inferior courts in Ontario, Mr. Justice Ferguson dismissed the motion for prohibition saying that the jurisdiction exercised by the Commissioner was "akin to the jurisdiction of a Justice of the Peace and analogous to those Courts which Chief Justice Duff was dealing with in the Adoption case."^{footnote 46[46]} Interestingly enough, Mr. Justice Ferguson also weighed in on the issue of whether the Commissioner was sitting as an administrative tribunal. While there is no way of knowing how this issue came forward without digging through archival material (a separate exercise and not part of this brief history), he was compelled for some reason to say, "[t]hat the Commissioner is not sitting as an administrative tribunal seems clear from the judgment of Masten J.A., in Re Ashby, [1934] O.R. 421 at p. 428, 62 C.C.C. 132, [1934] 3 D.L.R. 565: "The distinguishing mark of an administrative tribunal is that it possesses a complete, absolute and unfettered discretion and, having no fixed standard to follow, it is guided by its own ideas of policy and expediency. Hence, acting within its proper province and observing any procedural formalities prescribed, it cannot err in substantive matters because there is no standard for it to follow and hence no standard to judge or correct it by." The recorder and the commissioners are bound to apply the Mining Act, they have not an unfettered discretion, their discretion must be a judicial discretion, it is controlled by the rules laid down by the Mining Act and the regulations passed thereunder, as well as the law of the land. In view of the very wide powers of the Mining Commissioner and the statutory provisions he must apply in making decisions, and in particular in canceling a claim or in deciding if it ought or ought not to be cancelled, which usually involved, as in this application, a content between rivals takers, he is not acting administratively but as a Judge. In making such a decision he issues a judicial order, one which imposes legal obligation and duties. It follows, therefore, that the Commissioner, in my opinion, in making a decision is in effect acting as a Judge. But what kind of a Judge?"

After considering the changes in the amending legislation (such as the deletion of any reference to the Judge having the same powers as a Judge of a Superior Court sitting in a civil case or the need for the Judge’s appointment to be also be in accordance with the British North America Act, 1867), Mr. Justice Ferguson concluded "[a]ll of these changes indicate to me that the Legislature by the Act of 1956 has not intended to create a Court analogous to a Superior, County or District Court, but more in the nature of a Court presided over by a Justice of the Peace."

The Court of Appeal disagreed with Mr. Justice Ferguson’s conclusion and ruled that the Commissioner would be exercising the powers and jurisdiction that conformed broadly to the type of jurisdiction possessed only by a Superior Court at the time of Confederation in the Commissioner. We can only regret the fact that court decisions offer but tiny glimpses into the mammoth task that parties undertake to try to persuade a judge to agree with their propositions and arguments. However, Mr. Justice Schroeder of the Court of Appeal was as careful as Mr. Justice Ferguson to take his readers through the history of provincial mining legislation – the difference being that he ended up placing the Commissioner on par with a court of appeal and therefore meeting the definition of a superior court.^{footnote 47[47]} The case moved on to the Supreme Court of Canada in 1958.

In contrast to the lower appeal courts' detailed review of Canadian and Ontario judicial history, Chief Justice Rand cut to the quick. He honed in on the fact that the Province had established a neat system of disposing of Crown lands on certain terms and conditions and in the absolute judgement or discretion of an inferior court of review. Mr. Justice Rand looked back to the Gold Mining Act as well, but with the same practical view as Mr. Justice Ferguson had at the first level. Justices of the peace under that Act had meted out the necessary law and order so keenly needed by an opening frontier. If the decisions of these functionaries could be appealed to Division Court (quarterly sessions) prior to Confederation in Ontario, the appeals from decisions of mining recorders to the Commissioner were no different. The Commissioner was an inferior court of review and not an appeal court in the sense of the Superior Courts.^{footnote 48[48]} Justifying the decision did not need to rely on there being no "lis" between the parties nor was there any need to have the Commissioner’s appointment confirmed by the Governor General, as the appointment by the Lieutenant-Governor was valid. The appeal was allowed, the judgement of the Court of Appeal set aside and Mr. Justice Ferguson’s order restored.

Dupont v. Inglis in some respects marks the end of a chapter in the history the Mining Commissioner. The first fifty years had been a simpler time for this judicial tribunal; "tribunal" having the same meaning it did in England, namely a court. The 1960's loomed on the horizon and the judicial world would soon turn its attention to the issue of civil rights and the role of government in the affairs of its citizens.

The Royal Commission Inquiry into Civil Rights (called in 1964) signaled the start of a new era in a world where legislative, judicial and executive powers (statutory powers) would be scrutinized for any encroachments on the rights of individuals. The Inquiry into Civil Rights had been called "to examine, study and inquire into the laws of Ontario … affecting the personal freedoms, rights and liberties of Canadian citizens and others resident in Ontario for the purpose of determining how far there may be unjustified encroachment on those freedoms, rights and liberties by the Legislature, the Government, its officers and servants, divisions of Provincial Public Service, boards, commissions, committees, other emanations of government orbodies exercising authority under or administering the laws of Ontario." ^{footnote 49[49]} The resulting McRuer Report as it came to be called (named after the Commissioner of the Inquiry, the Honourable James Chalmers McRuer), appeared to be a wide-ranging review of the legal system in Ontario. However, by its own admission the Commission’s investigation was "directed to "laws", and the existence or possible exercise of powers of encroachment…." [by government].^{footnote 50[50]} Gaps in terms of historical background information can be therefore be anticipated when the focus is narrow; so that while the Commission reiterated the history of the Province’s court system (to set the stage so to speak), it glossed over the history of the Mining Commissioner completely and devoted its attention to "the provisions of the [Mining] Act relative to the procedure provided for the exercise of powers." ^{footnote 51[51]} The result was that the Mining Commissioner was lumped together with agencies, boards and commissions – administrative tribunals, and its history as an inferior court ignored.

The McRuer Report and its recommendations began to take effect in the early 1970's.^{footnote 52[52]} The summer of 1971 saw a spate of legislation come into effect aimed at governing the exercise of statutory power, the review of the exercise of such power, and the protection of civil rights. The Mining Act was amended to accommodate the new legislation.^{footnote 53[53]} One of the procedural items the Inquiry had considered in terms of the Mining Commissioner was the fact that despite there being provisions in the Mining Act for the Lieutenant Governor in Council to make rules respecting practice and procedure before the Commissioner this had not yet been done.^{footnote 54[54]} The Report recommended that rules of practice be prepared and made available.^{footnote 55[55]} Instead, the Mining Act was amended to incorporate sections of the new Statutory Powers Procedure Act dealing with hearing procedures.^{footnote 56[56]}

The legislative drafting process does not take place in a vacuum though. The reference to select sections of The Statutory Powers Procedure Act, coupled with the delegation of additional hearing responsibilities dealing with "appeals" by applicants whose initial regulatory applications had been refused, was signaling the start of a new role for the Commissioner in addition to the role of inferior court. Now, besides being a specialized court, the Commissioner would become something of a tribunal of last resort set up to hear from a wide assortment of applicants facing potential ministerial rejection of their regulatory applications of one sort or another. For example, The Civil Rights Amendment Act made it possible for quarry permit applicants under The Aggregate Resources Act to apply to the Commissioner for a hearing if the Minister refused their initial application. The Commissioner did not make a "decision" in the matter, but was required to "report" to the Minister and make recommendations. The applicants in effect received the independent hearing the McRuer Report said was so important to citizens in their dealings with government.

In 1973 the Mining Commissioner became known as the Mining and Lands Commissioner reflecting changes to The Ministry of Natural Resources Act, 1973.^{footnote 57[57]} The Lieutenant Governor in Council could also appoint one or more deputies. In later years, changes were made to the Oil, Gas and Salt Resources Act, the Assessment Act, the Aggregate Resources Act and the Conservation Authorities Act giving the Commissioner a wide range of hearing responsibilities resembling those of administrative tribunals set up to deal with regulatory hearings. These responsibilities exist today in those Acts.

The Mining Commissioner’s evolution would continue over the next two decades with additional amendments to the Mining Act.^{footnote 58[58]} The increase in the number and range of hearing responsibilities starting in the 1970's was perhaps inevitable given the increasing attention being paid to civil liberties and the role of government in the lives of its citizens. As well, the Mining Act continues to reflect the mining industry’s need for an all-inclusive regulatory system dealing with everything from disputes over claims to the approval of closure plans accompanying the de-commissioning of a mine. While the Commissioner still makes decisions under the Mining Act as an inferior court, the historical basis for this judicial role has to some extent been forgotten or overlooked. The current version of the Mining Act does little to dispel the notion that the Commissioner used to be a court but is no longer. One can understand the confusion and even extend some sympathy to present day parties appearing before what they consider to be solely an administrative tribunal.

On the other hand, the courts themselves never appear to have any difficulty in characterizing the Commissioner as a court. One of the more interesting cases illustrating this point (both in terms of subject matter and words from the bench) is the 1998 case of Minescape Exploration v. Bolen, where a dispute arose between the parties as to where the matter should be heard – the then Ontario Court (General Division) or the Mining Court. The General Division Court decided that the "unpatented mining claims are a backdrop to specialized legal and equitable principles that fall within the jurisdiction and expertise of the General Division."^{footnote 59[59]}

The facts of the case are simple enough; an agreement is made between various parties dealing with the staking of claims, the transfer of the claims, and the eventual development of a mine, and all that goes with such happenings. When the parties found themselves arguing about the status of the agreement they also found that they disagreed on where the case should be heard. An application was made to have the matter transferred to the Ontario Court (General Division) pursuant to section 107 of the Mining Act. Judge Kurisko’s analysis of the issues brings to mind the words of Justice Ferguson and Chief Justice Rand in Dupont v. Inglis. In dealing with the applicants' argument that "modern" case law "mandate the transfer … of contract, equitable relief and damages …" [to the Ontario Court (General Division)], he said: "[t]he statements quoted from the two Supreme Court cases set out principles that are favourable to the position of the applicants. However, many unanswered questions remain concerning the meaning of ss. 105 and 107: How do these sections relate to each other? What approach should be adopted in applying the provisions to specific facts? Does the Mining Court have exclusive jurisdiction in matters related to mining? Does the Mining Act displace the inherent jurisdiction of the General Division? Is there concurrent jurisdiction over certain matters? If so, how should the jurisdiction be exercised? What rules apply on an application to transfer a proceeding from the Mining Court?"

In applying what he described as a "principled approach" to the interpretation of the Mining Act, Judge Kurisko harkened back to Dupont v. Inglis and observed with as clear an eye as that of Rand J. that "the Supreme Court of Canada held the Mining Act is primarily legislation providing for the administration of mining resources owned by the province under the general direction of appointees for the Ontario government. The Supreme Court held that the provisions are not an attempt to exercise the jurisdiction of a court within the meaning of s. 96 of the British North America Act, 1867." As for the power to transfer a proceeding as set out in section 107 he described it as a "safety valve that protects encroachment by the Mining Court on private civil and property rights."^{footnote 60[60]} But it is his analysis of a hypothetical situation where parties had not obtained an order "in a timely fashion" transferring their proceedings to the General Division that is interesting for its treatment of the "Mining Court". What would be the result for the parties? "[Would] the decision of the Mining Court [be] valid and binding?"^{footnote 61[61]} Judge Kurisko noted that "[t]he question has never been decided." But he could "infer" the answer from something that Chief Justice Rand had said in Dupont v. Inglis. As he noted, "At p. 544 Rand J. said:

Carrying on with his analysis, Judge Kurisko said, "[i]f a party fails to apply under s. 107 to transfer a proceeding, Rand J. indicates it can be inferred such party (or parties) accepts the jurisdiction of decisions of the Mining Court. Does such failure to object or apply for a transfer of proceedings constitute an estoppel against later asserting the Mining Court decision is a nullity by reason of lack of jurisdiction? The question has not been decided but an answer in the affirmative has been indicated."^{footnote 62[62]}

Where does this leave the Mining and Lands Commissioner? To say that today the position presents interesting paradoxes would be putting things mildly.

Today’s Commissioner is the first female appointee.^{footnote 63[63]} In her role as an inferior court of review, the Commissioner is still required to hear disputes under the Mining Act and to carry out the role of "ultimate interpreter of the Act"^{footnote 64[64]}. As in the past, she can still be called on to deal with summary conviction cases (now referred to as provincial offences). Unlike her brethren of the past though, she can expect to deal with legal issues that have become both increasingly complex and costly. And unlike the Commissioners of the first fifty years, she can expect to hold hearings under the Conservation Authorities Act, the Oil, Gas and Salt Resources Act, the Lakes and Rivers Improvement Act and the Assessment Act. ^{footnote 65[65]}

Changes to jurisdiction aside, the Mining and Lands Commissioner carries on maintaining a rich decision-making tradition that reaches back one hundred years. Perhaps, quoting the 1988 government Green Paper that explained the 1989 changes to the Mining Act can serve to sum things up quite nicely. The resulting legislation closely resembles today’s version.