Exercise of percentage reservation for roads policy

• Subject: Exercise of Percentage Reservations for Roads (PL 3.01.01)
• Compiled By: Lands and Non-Renewable Resources Section in the Natural Heritage, Lands and Protected Spaces Branch
• Date Issued: July 11, 2014
• Replaces Directive: Exercise of Percentage Reservations for Roads Procedure (PL 3.01.01), February 10, 2006

1.0 Goal

To provide direction on the exercise of roads reservations by the Ministry of Natural Resources and Forestry (MNRF).

1.1 Applicable circumstances

MNRF will exercise a reservation for road access across private land and/or to provide access to private property for the following reasons:

• where access is required for the program purposes of the Ministry;
• where requested by a private land owner who requires access and has demonstrated that no other option exists; or
• where requested by the council of a municipality that is not empowered to exercise the reservation [in this case, MNRF will authorize the municipality to exercise the reservation under Public Lands Act s. 65(3)].

Objectives

1. Ensure that when the percentage reservation for roads contained in letters patent is exercised, it is done in a fair and equitable manner.

   The Ministry will have regard for the effect that severances and subdivisions have had on the original parcel granted by the Crown when exercising a percentage reservation. The Ministry may exercise the entire percentage reservation on a single lot, or a limited number of lots, that were created by severing the original parcel. All reasonable attempts should be made to confine the exercise of the reservation to the pro-rated area of an individual ownership (e.g. lot in a registered plan of subdivision).

   MNRF staff will attempt to negotiate a mutually agreeable location of the area to be exercised, with the registered owner(s) of the affected parcel(s).

2. Ensure that other options to facilitate access are fully explored.

   Other options may include access by water, across unalienated Crown land, access by an existing unopened road allowance, or along an existing road to which rights protected under the Road Access Act would apply.

   The Ministry will not exercise the percentage reservation for roads:

   1. within a township, except where required for MNRF program purposes; or
   2. where for private purposes, if other access is available (including water access where properties have been disposed of on a water access basis);or
   3. where existing access is available on a road on which the provisions of the Road Access Act apply, unless the road has been lawfully closed in accordance with the Act or is required for MNRF program purposes.
3. Ensure that where the MNRF exercises a percentage reservation for roads for a third party [e.g. private land owner(s)] the costs, both administrative and non- administrative (e.g. surveying), of exercising the reservation are borne by the beneficiary(ies).>

   All costs associated with the exercise of the reservation will be borne by the part(ies) requesting the action. MNRF will recover its costs by assessing an administrative fee per PL 6.02.01 – Administrative Fees for Public Land Transactions.

   The boundaries of the area to be taken for new roads shall be surveyed prior to exercising the reservation and, if required (as in the case of encroachment onto lands not indicated by survey), subsequent to any required road construction.

4. Dedicate roads created by exercise of a percentage reservation to public use.

   Where the percentage reservation is exercised by the MNRF, the road shall be deemed to be a road as defined under Section 48 of the Public Lands Act and will be open for public travel per Section 49 of the Act. The lands, as surveyed, will become provincial Crown land once the document exercising the reservation has been registered, at the appropriate Land Registry Office.

   Where the reservation is exercised by a municipality [as authorized by MNRF under s. 65(3) PLA], land acquired by a municipality becomes the property of the municipality without any payment to the Crown.

2.0 Background

Prior to 1866, access to private property was generally provided by existing roads which fronted on the land granted, through the possible use of road allowances (e.g. road allowances laid out in a 1,000 acre section survey system), or through the use of navigable bodies of water (deemed to be aqueous public highways).

On August 6^th, 1866, an Order-in-Council directed that the 5% reservation system be adopted in areas where townships were surveyed without road allowances (primarily Northern Ontario). The system required that Crown grants reserve a percentage of the surface rights in lands for future road requirements. This practice was adopted because the topography of land in northern Ontario did not generally lend itself to the establishment of road allowances by traditional survey to allow for potential future access.

Following the adoption of this system, 5% of the area granted has generally been reserved for roads. For smaller parcels (e.g. summer resort locations), or for parcels granted under the Mining Act, a reservation of 10% of the surface rights may have been made.

The practice of reserving, and where necessary exercising, a percentage reservation for roads has been used as the only practical means of providing access for settlement over much of the province, as it was simply impossible at the time of the grant to foresee what land would be required for future public uses.

This practice is supported today by the following provisions of the Public Lands Act:

• subsection 64(2), which directs that every patent, lease or licence of occupation issued under the Act shall reserve to the Crown such percentage, if any, of the surface rights of the land as the Minister considers necessary for road purposes;
• subsection 65(1), which directs that all sales, free grant locations, leases, licences of occupation, mining claims and other dispositions of public or mining lands shall reserve to the Crown the right to construct any road without making compensation therefore, and such right whether or not it is expressly reserved shall be deemed to be so reserved;
• subsection 65(2), which provides that wood, gravel and other materials required for the construction or improvement of roads may be taken without compensation, where letters patent have contained a reservation of any area for roads; and
• subsection 65(3) which provides that the rights mentioned in subsection 65(1) and (2) may be exercised by the Minister or by any person authorized by him to exercise them on behalf of the Crown.

2.1 Organizations that may exercise a road reservation

A percentage reservation for roads (i.e. 5 or 10%) contained in letters patent may be exercised against the surface rights of a property by:

1. the Minister of Natural Resources and Forestry, or any person authorized by the Minister to exercise the reservation on behalf of the Crown (per subsection 65(3) of the Act);
2. any other Minister of the Crown (Ontario) lawfully exercising the reservation on behalf of the Crown;
3. the council of a township, excluding a township within the District Municipality of Muskoka, may exercise a percentage road reservation for the purpose of establishing a highway if:
   • the township was surveyed without road allowances [s. 64(1) of the Municipal Act, 2001]; and
   • the reservation is on private property held in fee simple ownership.
     Note: For provincial Crown lands, including provincial Crown lands under lease-hold tenure, MNRF shall exercise the percentage road reservation.
4. a Road Commissioner elected under the Statute Labour Act (authority – subsection 22(1) of the Statute Labour Act).

3.0 Definitions

In this policy,

“private property”

means patented land that is privately owned;

“township”

means a municipality that had the status of a township on December 31, 2002.

“MNRF program purpose”

includes any mandated program of the Ministry of Natural Resources and Forestry (MNRF) including the management of: Crown lands and forests; fish and wildlife; emergency response and forest fires; water; non-renewable resources; biodiversity; natural heritage and protected areas; and species at risk.

4.0 References

4.1 Legislative cross references

• Municipal Act, Section 64(1)
• Public Lands Act, Sections 49, 50 and subsections 65(1), (2) and (3)
• Road Access Act
• Statute Labour Act

4.2 Case law cross references

• Palmatier vs. McKibbon (1894) 21 O.A.R. 441
• Crane Lumber Co. V Brission et al., 1936, O.R. 45
• Cooper and Stuart, 1889, 14 AC. 286 on appeal from the Supreme Court of New South Wales, Australia

4.3 Directive cross references

• PL 6.02.01(POL) Administrative Fees for Public Land Transactions
• PL 3.01.01(PRO) Exercise of Percentage Reservation for Roads