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Code of Ethics for Rockhounds

Printed below is the Code of Ethics adopted by CCFMS to which all its members are expected to abide

by:

1. I will respect both private and public property and will do no collecting on privately owned land without the owner's permission.

2. I will keep informed on all laws, regulations or rules governing collecting on public lands and

will observe them.

3. I will, to the best of my ability, ascertain the boundary lines of property on which I plan to

collect.

4. I will use no firearms or blasting material in collecting areas.

5. I will cause no willful damage to property of any kind - fences, signs, buildings etc.

6. I will leave all gates as found.

7. I will build fires in designated or safe places only, and will be certain they are completely

extinguished before leaving the area.

8. I will discard no burning material - matches, cigarettes, etc.

9. I will fill all excavation holes which may be dangerous to livestock. I will not contaminate

wells, creeks or other water supply.

10. I will cause no willful damage to collecting material, and will take home only what I can

reasonably use.

11. I will leave all collecting areas devoid of litter, regardless of how found.

12. I will co-operate with field trip leaders, and those designated in authority in all collecting areas.

13. I will report to my Club or Federation Officers, or other proper authorities, any deposit of

material on public lands which should be protected for the enjoyment of future generations for

public educational and scientific purposes.

14. I will appreciate and protect our heritage of natural resources.

15. I will observe the "Golden Rule" and will use "Good Outdoor Manners" and will at all times

conduct myself in a manner which will add to the stature and "Public Image" of rockhounds

everywhere.

© Central Canadian Federation of Mineralogical Societies 2012 – reproduced with permission

Source: http://www.ccfms.ca/Events/field_trips.html#Code

Recreational Access Toolkit Template Documents

The provided legal document templates are examples of those commonly used as part of a comprehensive

access and risk management strategy. They have been developed by the Ontario’s Highlands Tourism

Organization with certain special considerations unique to Recreational Geology in mind, but every situation is

different, and the number of variables too great to predict, so they are not intended for verbatim use in any

particular circumstance. They may, however, be adapted for use in a variety of situations, greatly reducing the

cost of production, and demystifying the process of developing any such access/management strategy. Please

consult your lawyer, insurance provider, and others as appropriate for advice relevant to your circumstance.

These documents have been prepared for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/.

1

Français

Trespass to Property Act

R.S.O. 1990, CHAPTER T.21

Consolidation Period: From May 31, 2001 to the e-Laws currency date.

Last amendment: 2000, c.30, s.11.

Definitions

1. (1) In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes,

(a) water,

(b) ships and vessels,

(c) trailers and portable structures designed or used for residence, business or shelter,

(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).

School boards

(2) A school board has all the rights and duties of an occupier in respect of its school sites as defined in the Education Act. R.S.O. 1990, c. T.21, s. 1 (2).

Trespass an offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).

Colour of right as a defence

(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of. R.S.O. 1990, c. T.21, s. 2 (2).

Prohibition of entry

3. (1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,

(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or

(b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises. R.S.O. 1990, c. T.21, s. 3 (1).

2

Implied permission to use approach to door

(2) There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited. R.S.O. 1990, c. T.21, s. 3 (2).

Limited permission

4. (1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only. R.S.O. 1990, c. T.21, s. 4 (1).

Limited prohibition

(2) Where entry on premises is not prohibited under section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited. R.S.O. 1990, c. T.21, s. 4 (2).

Method of giving notice

5. (1) A notice under this Act may be given,

(a) orally or in writing;

(b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or

(c) by means of the marking system set out in section 7. R.S.O. 1990, c. T.21, s. 5 (1).

Substantial compliance

(2) Substantial compliance with clause (1) (b) or (c) is sufficient notice. R.S.O. 1990, c. T.21, s. 5 (2).

Form of sign

6. (1) A sign naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted. R.S.O. 1990, c. T.21, s. 6 (1).

Idem

(2) A sign naming an activity with an oblique line drawn through the name or showing a graphic representation of an activity with an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited. R.S.O. 1990, c. T.21, s. 6 (2).

Red markings

7. (1) Red markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry on the premises is prohibited. R.S.O. 1990, c. T.21, s. 7 (1).

Yellow markings

(2) Yellow markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry is prohibited except for the purpose of certain activities and shall be deemed to be notice of the activities permitted. R.S.O. 1990, c. T.21, s. 7 (2).

Size

(3) A marking under this section shall be of such a size that a circle ten centimetres in diameter can be contained wholly within it. R.S.O. 1990, c. T.21, s. 7 (3).

Posting

(4) Markings under this section shall be so placed that a marking is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies. R.S.O. 1990, c. T.21, s. 7 (4).

Notice applicable to part of premises

8. A notice or permission under this Act may be given in respect of any part of the premises of an occupier. R.S.O. 1990, c. T.21, s. 8.

Arrest without warrant on premises

9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

3

Delivery to police officer

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).

Deemed arrest

(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

Arrest without warrant off premises

10. Where a police officer believes on reasonable and probable grounds that a person has been in contravention of section 2 and has made fresh departure from the premises, and the person refuses to give his or her name and address, or there are reasonable and probable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant. R.S.O. 1990, c. T.21, s. 10.

Motor vehicles and motorized snow vehicles

11. Where an offence under this Act is committed by means of a motor vehicle, as defined in the Highway Traffic Act, or by means of a motorized snow vehicle, as defined in the Motorized Snow Vehicles Act, the driver of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act and, where the driver is not the owner, the owner of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act unless the driver is convicted of the offence or, at the time the offence was committed, the motor vehicle or motorized snow vehicle was in the possession of a person other than the owner without the owner’s consent. 2000, c. 30, s. 11.

Damage award

12. (1) Where a person is convicted of an offence under section 2, and a person has suffered damage caused by the person convicted during the commission of the offence, the court shall, on the request of the prosecutor and with the consent of the person who suffered the damage, determine the damages and shall make a judgment for damages against the person convicted in favour of the person who suffered the damage, but no judgment shall be for an amount in excess of $1,000. R.S.O. 1990, c. T.21, s. 12 (1).

Costs of prosecution

(2) Where a prosecution under section 2 is conducted by a private prosecutor, and the defendant is convicted, unless the court is of the opinion that the prosecution was not necessary for the protection of the occupier or the occupier’s interests, the court shall determine the actual costs reasonably incurred in conducting the prosecution and, despite section 60 of the Provincial Offences Act, shall order those costs to be paid by the defendant to the prosecutor. R.S.O. 1990, c. T.21, s. 12 (2).

Damages and costs in addition to fine

(3) A judgment for damages under subsection (1), or an award of costs under subsection (2), shall be in addition to any fine that is imposed under this Act. R.S.O. 1990, c. T.21, s. 12 (3).

Civil action

(4) A judgment for damages under subsection (1) extinguishes the right of the person in whose favour the judgment is made to bring a civil action for damages against the person convicted arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (4).

Idem

(5) The failure to request or refusal to grant a judgment for damages under subsection (1) does not affect a right to bring a civil action for damages arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (5).

Enforcement

(6) The judgment for damages under subsection (1), and the award for costs under subsection (2), may be filed in the Small Claims Court and shall be deemed to be a judgment or order of that court for the purposes of enforcement. R.S.O. 1990, c. T.21, s. 12 (6).

____________________

© Queen's Printer for Ontario, 2012.

Source: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90t21_e.htm

Recreational Access Toolkit Recreational Use of Privately Owned Rural Properties in Ontario

Reducing Your Risk

We at the Ontario's Highlands Tourism Organization would like to see greater opportunities to engage in outdoor

recreational activities that encourage tourism, promote a healthy lifestyle, and enhance active communities throughout our

region. For that reason, we have prepared the following information about certain landowners' rights and responsibilities to

help you make informed decisions about shared land use and help you protect yourself against liability. This package is

presented for discussion purposes only, however; it is not intended, nor should it be used, to provide legal advice. The

reader should discuss any particular situation with their lawyer, insurance provider and other advisors.

Are you inclined to allow people to engage in certain types of outdoor recreation on your rural property, but are

concerned about the associated risk of liability? If you live in a wilderness or rural area, you probably have an

outdoor pass-time of your own. What if there was a way for you to help enthusiasts like yourself enjoy better

access to their hobbies without putting yourself at undue risk?

There is!

In 1980, the Occupiers' Liability Act (OLA) replaced the judges’ decisions of common law in determining fault

(and therefore financial responsibility for damages) in these matters. By setting out in legislation your duty to

provide a reasonably safe environment for people entering your premises, the OLA makes it easier for you to

understand your responsibilities and predict risk. But what is really noteworthy is that this legislation is, in part,

specifically intended to encourage rural landowners to allow recreational use of their properties by applying a

greatly reduced duty of care under certain circumstances.

In many instances, this lower standard would virtually eliminate a responsible, well-intentioned person's risk of

liability, but by knowing the law and managing your risk proactively, you can better protect yourself before it ever

becomes an issue. Most outdoor recreational associations and businesses have been employing “risk

management strategies” for years, but there's no reason why you can't use the same tools and techniques

yourself – helping you enjoy your property as you wish, with greater peace of mind. An ounce of prevention is

your best defence against liability.

The idea of risk management might seem a little foreign at first, but having someone check on your house while

you’re on vacation, or getting your chimney cleaned periodically is just that – risk management. As it applies to

a rural property, taking care of significant hazards, and performing routine maintenance are not unusual

activities, even if you don’t allow recreational use. Encouraging people to share in your enjoyment of the land

doesn’t have to be a burden, and by adding a few simple steps to your routine, you could actually lower your risk

of liability by allowing certain recreational uses than by simply prohibiting entry altogether!

A basic risk management strategy might include:

Taking steps to mitigate significant hazards on your property.

◦ erect warning signs, restrict access, remediate or eliminate the hazard, etc.

Regular inspection for new hazards, and basic property maintenance.

◦ annually checking for new deadfall threatening trails and regular points of entry, for example

Adequate insurance coverage suited to your circumstance.

◦ be clear with your insurance provider to ensure that you will be protected if there’s a problem

Posting clear notice regarding entry.

◦ whether or not you wish to allow entry, make sure people understand your wishes

Have people sign a waiver if you do allow them onto your property for recreational activity.

◦ this can demonstrate that people understood and willingly assumed the risks of entry and your

requirements, and agreed to hold you harmless for damages

Frequently Asked Questions

Is there anything I can do to keep from being sued?

No. Depending on the circumstances, it might be very quickly found that you are not at fault or that

there is no merit in the law suit, but everybody has the right to bring a reasonable law suit to court to

determine the facts if there is a dispute. Risk management is about taking a few simple steps to

proactively reduce your risk, and help ensure you will not be found responsible.

A waiver of liability (such as the examples provided in this package) is a common part of many risk

management strategies. While it cannot prevent a law suit, a properly worded waiver can help protect

you from being found responsible for damages by demonstrating that a person willingly agreed to hold

you harmless, and that they did indeed understand and assume all the risks of a given circumstance.

Thanks to the protections offered by the OLA for “recreational use”, it might not be necessary, but having

recreational users sign a waiver can help to remove uncertainty, and adds an extra layer of protection.

I have “NO TRESPASSING” signs, isn't that enough?

No. Under the OLA, a trespasser “shall be deemed to have willingly assumed all risks”, which means that

they would assume responsibility for their own actions and any damages that result in most cases – it

would be up to a claimant to prove otherwise in a court of law if they were to file action against you. But

even for a trespasser, you still owe a duty “to not create a danger with the deliberate intent of doing

harm or damage to the person or his or her property and to not act with reckless disregard of the

presence of the person or his or her property” (emphasis added).

Knowing that it is virtually impossible to actually prevent someone from entering your property if they

are determined to do so, the law expects you to act accordingly and take certain reasonable safety

precautions. If you are aware of a significant hazard on your property – an abandoned well, for example

– you should take steps to mitigate it (erect warning signs, fence it off, or eliminate it), whether you

intend to allow people on your property or not. Even if you don’t want to allow recreational use, keeping

your property in good condition for your friends and your family – to whom you do owe a reasonably

safe environment – only makes sense.

If I grant permission for someone to enter, aren't I automatically held to a higher standard?

No. Although you would normally be expected to provide greater care to ensure the safety of someone

you invite onto your property than for a trespasser, under qualifying circumstances, Section 4 of the OLA

treats “permitted recreational activity” the same as illegal entry. Assuming the conditions are met, if you

allow someone onto your rural property for recreational use, they are deemed to have willingly assumed

all risks of entry, and only the lower duty of care applies (i.e. to not create a danger or act with reckless

disregard).

You can refer to Section 4 of the OLA to see if this protection might apply to your circumstance (a copy is

included with this package for reference – the most up-to-date version can be obtained from www.e-

laws.gov.on.ca). Regardless of the situation, however, having recreational users sign a waiver can help

remove uncertainty by demonstrating and documenting a willing assumption of risks and an agreement

to hold you harmless for damages, rather than relying on it simply being “deemed” so. In this way, you

can actually be at lower risk of liability by encouraging recreational users to approach you for permission

than by simply prohibiting entry all together.

Do I really have to get a signed waiver every time someone enters my property?

No, but if someone approaches you for permission, it certainly can't hurt. In many cases, a posted

warning or disclaimer could be effective (an example is provided), and it could still protect you in the

event that someone enters without asking – in which case, posted warnings may be advisable anyway. If

a written waiver is used, it may remain in effect as long as the conditions it describes remain the same. It

is advisable, however, that individuals be encouraged to reaffirm their understanding of the risks

periodically (on an annual basis, for example), or anytime there is a substantial change in the property’s

conditions. Posted notices and warning signs should also be updated accordingly.

What if I only want to allow certain activities?

No problem. You are free to decide which activities may be conducted on your land, define specific areas

where they are carried out, and still prohibit entry and access elsewhere – or for other purposes. The

Trespass to Property Act (TPA) indicates how notice to this effect may be given.

Although much of the instruction in the TPA is fairly straightforward, it is important to note that certain

things are “implied” if you post notice only about specific activities. By simply erecting a “NO HUNTING”

sign, for example, you are implying that entry for all other purposes (except illegal activities) is

permitted. Conversely, specifically allowing one activity automatically implies that all others are

prohibited. While this does not necessarily affect your risk of liability, if you are going to be selective, it

may be better to allow certain activities than to specifically prohibit others (unless that is your intent).

It’s also a good idea to check with your insurance provider to ensure that your coverage is consistent

with your wishes with respect to entry. A copy of the TPA is included in this package for your

information. The most up to date version may be downloaded from e-laws.

Can I charge a fee for entry?

Yes. You are free to set the conditions of entry to your property – BUT charging a fee will disqualify you

for the reduced duty of care described in Section 4 that might otherwise be “deemed” to apply in the

case of recreational activity. How a court interprets the facts of a case, or how your insurance company

views your circumstance can change dramatically if it is perceived that you are operating a business.

There are other ways to limit your liability (such as the waiver), and you won’t necessarily be held to a

higher standard just because you charged a fee, but unless you do wish to operate a business, it’s much

safer not to charge. Of course there's nothing wrong with running a business, just be sure to consult

your lawyer, insurance provider, and other advisors as appropriate if that is your intent.

You may, however, receive a benefit or payment “from a government or government agency or a non-

profit recreation club or association” without jeopardizing this protection. In the same section, it is also

important to note that providing “living accommodations” to a recreational user will also disqualify you

for the protections offered under this section, and the standard duty of care described in Section 3

would apply: “An occupier of premises owes a duty to take such care as in all the circumstances of the

case is reasonable to see that persons entering on the premises, and the property brought on the

premises by those persons are reasonably safe while on the premises.” (as would be the case if you had

a friend staying overnight, for example)

What if it is my business to provide living accommodations?

If you charge a fee for living accommodations, then the Innkeepers Act or other legislation may also

apply. Running a B&B or a campground in a rural area such as Ontario’s Highlands means your guests

are probably already engaging in recreational activity on your premises though – recreational trails, for

example. If you don’t yet have a risk management strategy that takes recreational activity into account,

or you are considering different uses of your property, you can use the contents of this package to get

started, but as always, be sure to consult appropriate advisors for recommendations on your particular

situation.

What types of recreational activities should I expect in Ontario's Highlands?

Anyone who spends time in a rural community or wilderness area will probably know of dozens of ways

to get outdoors and appreciate nature. This discussion would apply equally to any outdoor activity that

would reasonably be considered recreational in nature. In the Ontario’s Highlands region, there are

plenty of opportunities to engage in a recreational exploration of our unique geology that might be less

familiar though. For the most part, the physical activities of “Recreational Geology” are the same as for

any naturalist pursuit (hiking, biking, paddling, etc...) – the participant might just be looking at rocks and

geological formations instead of birds or flowers. Rocks, minerals and fossils are unique, however, in that

collecting is the primary form of conservation and appreciation, and since they are usually found below

ground, there are some additional considerations that apply.

In Ontario, the recreational activity of “Hobby Mineral Collecting” is defined and governed by the

Ministry of Northern Development and Mines’ Mineral Collecting Policy. This definition essentially

covers any type of collecting of geological material for personal enjoyment (rocks, fossils, gold panning,

etc.), and the policy describes how and where people are allowed to do so. If you hold both the surface

and mineral rights to your property (as is usually the case in Southern Ontario), then people must ask

your permission not only to enter, but also to collect if that is their intent. The policy states that this

permission should be granted in writing in order to protect both parties. An example letter of

permission is included in this package for your convenience.

People participating in Recreational Geology activities in Ontario's Highlands are also encouraged to

abide by the Central Canadian Federation of Mineralogical Societies' Code of Ethics. Both the Mineral

Collecting Policy and the Code of Ethics are included in this package, and are available online:

http://www.mndm.gov.on.ca;*

http://www.ccfms.ca/Events/field_trips.html#Code.

*The Mineral Collecting Policy is currently under review by the MNDM to ensure that it is consistent with recent

changes to the Mining Act, so it is subject to change, but these changes are not expected to significantly alter the

intent or basic principles of the policy. Please also see Hobby Mineral Collecting and the Law for more information

about these changes. The Mineral Collecting Policy may be temporarily unavailable online while the MNDM

restructures its website, but the most recently available version of the Policy is included in this package for

informational purposes.

If I allow someone to engage in a recreational activity on my property, will my homeowners

insurance cover me in case of accident?

Insurance providers are well aware of the protections offered by the OLA, and as a result, more and more

companies – especially those with significant business in rural areas – are offering better coverage that

recognizes recreational activity and shared land use. If you’re unsure about your individual coverage,

check your policy and call your provider. If you don’t like the answer, shop around! Insurance doesn’t

have to be the deciding factor in allowing recreational use of your property, just be clear about your

situation to be sure that you will be covered in the unlikely event that it is required.

Having a full risk management strategy that is aware of the law and appropriate to your situation might

be the best thing that you can do to ensure you are protected by adequate, affordable insurance

coverage for any eventuality.

What is an Access or Land Use agreement?

This is an agreement between two or more parties (usually a landowner and a public organization) that

outlines the terms of shared use of all or parts of a private property. It is typically intended to negotiate

access for members of a user group, or the general public for specific activities – recreational trails, for

example. In return, the beneficiaries of such an agreement will often take on certain responsibilities

such as signage, hazard remediation and property maintenance, and sometimes offer supplemental

liability insurance coverage.

Such an agreement (an example of which is included in this package) should clearly identify what

activities may be carried out where, protect the landowner's rights, outline each party's responsibilities,

and indicate how it may be terminated. A similar written agreement should also be made if someone

wishes to publish identifiable information about you or your private property. While a fee paid by an

individual will invalidate the protections of section 4 of the OLA in the case of recreational use, a

landowner may receive a benefit or payment “from a government or government agency or a non-profit

recreation club or association” without effect.

Every circumstance is different, but by employing a well-informed, common sense approach to risk management,

you can virtually eliminate your risk of liability and benefit your community by encouraging outdoor recreation

through shared land use.

At the end of the day, whether or not you wish to allow recreational use of your property, we at the Ontario’s

Highlands Tourism Organization sincerely hope that the information presented in this package will help you to

make informed choices, and take concrete steps to enjoy a safe and rewarding Highlands experience.

An ounce of prevention is your best defence against liability under any circumstance.

This document has been prepared for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/.

Recreational Access Toolkit Introduction

This Toolkit is intended to assist in negotiating recreational access to private rural properties in Ontario’s

Highlands for the individual enthusiast, tourism business, or outdoor organization by providing all parties with

some of the tools and information they will need to make informed choices, and reduce their risk of liability.

Certain parts of this package address either the landowner or the recreational interest directly. As an aid to

negotiating shared land use between two parties, the information it contains is intended equally for both. The

onus will usually be on those who wish to gain recreational access to provide this information, however, as one

cannot expect that a landowner should be as eager to grant such use. It is therefore most important that

anyone who has an interest in securing recreational access to private property – especially those front-line

workers, volunteers, and individual users who will be the ones to actually negotiate this access – familiarize

themselves with the contents of this package first in order to facilitate these discussions, and hopefully,

recreational access.

Since fear of liability is one of the biggest concerns when it comes to shared land use, this issue is the central

discussion point of this package. This is not a study of occupiers’ liability and risk management meant to guide

businesses and organizations in policy and strategic planning though. The Toolkit has been designed with the

layperson in mind – offering plain-English interpretation and example legal document templates that shed light

on legal process, can be tailored to suit a particular circumstance, and employed on an individual basis to

reduce liability at the point of entry.

Having been developed through the Recreational Geology Project of the Ontario’s Highlands Tourism

Organization, the Toolkit contains information which is specific to Hobby Mineral Collecting (to which special,

and perhaps unfamiliar, considerations apply). Still, being based on Ontario law, the basic principles this

package discusses could be applied generally to nearly any outdoor recreational activity anywhere in the

Province. There may be other pertinent legislation, best-practices, or information that could apply to a

particular activity (such as with motorized access), so it will be up to the person who is negotiating access for a

particular purpose to fully inform themselves, explain, justify, and defend their specific interests and conduct.

Ultimately, it will be up to each individual user, and the proponents of any given activity, to also ensure that

they show respect, common courtesy, and common sense when representing themselves, their hobby, and the

Highlands in order to maintain good landowner relations for all.

Who is the Toolkit for?

For the Landowner (or other private rights holder):

The Occupiers' Liability Act (OLA) describes your “duty of care”: a landowners' (or in some cases, other

rights holders’) responsibility to provide a reasonably safe environment for people entering a premises

under various circumstances. This makes it much easier to plan for and manage these responsibilities,

compared to the principles of common law that the OLA replaces. Regardless of whether you prohibit

entry, or openly welcome any and all, you are still ultimately responsible for the state of your property

and the hazards it may present to those who enter.

The good news is that the OLA offers a greatly reduced duty of care in the case of trespass and, under

certain circumstances, recreational activity. This idea that those who enter a rural property for

recreational use are owed only the same reduced duty of care (i.e. level of responsibility) that applies

to illegal entry was introduced specifically to help encourage shared land use and increased

opportunities for people to enjoy the outdoors.

This means that by being aware of the law and taking a few simple steps to manage your risk

proactively – before there is a problem – you can encourage outdoor recreational use of your rural

property and virtually eliminate your risk of liability at the same time.

For the Individual Outdoor Enthusiast:

Most of us are fully prepared to accept responsibility for our own actions in the pursuit of our favourite

outdoor activity, but when we’re out on our own – without the benefit of a recreational organization’s

backing – it can be difficult to convince a private property owner of this. Sometimes, despite our best

intentions, our insurance companies can file a suit on our behalf if something untoward should happen.

In order to protect precious opportunities to engage in our hobbies, acting courteously, responsibly,

and safely is essential, but isn’t always enough. It is also important to understand liability from the

landowner’s perspective, and know what you can do to help assuage these concerns. For example,

signing a waiver of liability to participate in guided tours and group activities is fairly standard these

days. This helps to protect guides, landowners, and tour organizers against liability by asking

participants to demonstrate a willing assumption of the associated risks. Although we don’t tend to

associate this type of risk management with individual activities, there’s no reason you can’t offer this

same protection to someone whose property you wish to enter – you just need an appropriate waiver,

and an understanding of what it means. The Toolkit provides examples of both.

For the Tourism Business and Outdoor Recreational Association (those who would negotiate

access on others’ behalf):

This package is not intended to comprehensively inform your policies, risk management strategy, or

best-practices related to your individual interests and activities. As it is your business to know (and

since charging fees for access can change the duty of care), we anticipate that you are already well-

informed on these issues and that you will have independent advisors who can provide advice that is

relevant to your particular situation. That said, we have tried to take full advantage of the protections

offered by the Occupiers’ Liability Act, so we hope you will find some helpful ideas that can be

incorporated into your existing process, but the Toolkit is not intended to replace a tried and true risk

management strategy. The legal document templates should prove useful to small operators, new

businesses, and not-for-profit organization though – those for whom the process and expense of

creating these instruments can be daunting and prohibitive.

In any event, we expect you will find the presentation of this information helpful when discussing these

issues with your front-line staff and volunteers, and the landowners they will be approaching for

access.

For Everyone:

We at the Ontario's Highlands Tourism Organization would like to see greater opportunities to engage

in outdoor recreational activities that encourage tourism, promote a healthy lifestyle, and enhance

active communities throughout our region. For that reason, we have prepared this package to help

everyone involved in outdoor recreational access ask informed questions and provide good

information about shared land use. You should always consult your lawyer, insurance provider, and

others as appropriate to ensure that any particular strategy suits your circumstance, but not having to

start from scratch every time will save much time, money, and duplication. By offering the tools and

information contained in this package, we also hope to encourage a consistent approach to access

negotiations throughout the Highlands to help ensure a positive experience for everyone involved.

What the Toolkit contains:

Recreational Use of Privately Owned Rural Properties in Ontario – Reducing Your Risk (Frequently

Asked Questions)

A question & answer-style, plain-English introduction to occupiers’ liability for the landowner, and

certain other issues related to recreational use of private rural properties in Ontario’s Highlands.

Example Legal Templates (some or all of which may be adapted for use in a particular situation):

Waiver of Liability (general use)

A simple document that can be signed by an individual recreational user (or members of a

group) at the point of entry to demonstrate that they are aware of the risks, and that they

agree to hold the landowner harmless for any damages that may result.

Waiver of Liability (comprehensive)

As above, with additional, more detailed language making it appropriate even for higher-risk

situations, or risk-averse individuals.

Warning Sign/Posted Waiver of Liability

An example of language that could be posted on a sign at likely points of entry to warn people

of risks, and limit the property owner’s liability for damages in the case where individual

permission is not sought/required.

Permission to Collect

It is recommended by the Mineral Collecting Policy of Ontario that permission, not only to

enter a property, but also to collect geological material – if that is the intent – be obtained in

writing (such permission may be required from multiple rights holders in some cases). This is

an example of such a permission letter for groups and individuals.

Access and Management Agreement

Grants permission and sets out the conditions for recreational access to, and distribution of

information about, a private property where a managing entity agrees to take on responsibility

for some of the occupiers’ duties and shelters them from resulting liability.

Communication and Referral for Access

Grants permission and sets out the conditions for recreational access to, and distribution of

information about, a private property where the entity who refers others for access DOES NOT

assume any responsibility for a property or activities conducted upon it.

Guide to Implementation:

Once you have familiarized yourself with the contents of this package, the Guide to Implementation will

assist you in putting it to practical use.

Other Resources:

Occupiers’ Liability Act, and the Trespass to Property Act

The two primary pieces of legislation upon which this package is based – current as of the

release date of this package. These and other provincial legislation that may apply to your

circumstances are also available from: www.e-laws.gov.on.ca.

Mineral Collecting Policy*

“Hobby Mineral Collecting” (indicated here by initial capitals) is not a description of a single

activity, per se, but rather a legal distinction encompassing a broad privilege provided for under

the Policy which governs the collecting of any type of geological material for personal

enjoyment (rocks, fossils, gold panning, etc…). The Policy also outlines certain other

considerations which are unique to Recreational Geology activities. Please also see Hobby

Mineral Collecting and the Law for more information.

*The Mineral Collecting Policy is currently under review by the Ministry of Northern Development and

Mines (MNDM) to ensure that it is consistent with recent changes to the Mining Act. Thus, it is subject

to change, but any changes are not expected to significantly alter the intent or basic principles of the

policy. The most recently available version of the Policy is included in this package for informational

purposes. When the updated policy is complete, it is expected that it will be released through the

Ministry’s website, http://www.mndm.gov.on.ca.

Hobby Mineral Collecting and the Law

A brief discussion about Ontario’s Mineral Collecting Policy, and recent changes to the Mining

Act.

Code of Ethics for Rockhounds

Recommended best-practices for hobby mineral collecting – provided by the Central Canadian

Federation of Mineralogical Societies: http://www.ccfms.ca/Events/field_trips.html#Code

This document has been prepared for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/. We value your feedback. If you have any comments or questions about the Toolkit, please let us know by contacting us at geology@ohto.ca.

Mineral Collecting

Policy: L.P. 701-1

Date Issued: March 25, 2011

Purpose

As stewards of minerals in the province, the Ministry of Northern Development and Mines

recognizes hobby mineral collecting for its recreational and educational benefits to the public as

a whole. Therefore the Ministry allows mineral collecting under conditions specified in this

policy.

Policy

Mineral collecting in Ontario is a privilege offered by the Province and is not a right. Hobby

mineral collectors have no legal right to collect or extract minerals on Crown land or on land

where title, an interest or right is held by a person or company, who is not the mineral collector.

Types of Mineral Collecting

There are two types of mineral collecting recognized by the Crown: hobby mineral collecting,

and large scale/commercial mineral collecting. The two types of mineral collecting are

distinguished on the basis of a threshold limit, which is explained in the definition section of this

policy.

Legal Requirement

The Mining Act makes it clear that minerals cannot be extracted or removed without a lease of

the mining rights, and compliance with the provisions of Part VII of the Act. Extraction can also

be authorized in some cases by the Aggregate Resources Act. However, there is no specific

authorization to remove minerals as part of a hobby collection.

Hobby Collecting

Hobby mineral collecting is allowed to the threshold limit, where both surface and mining rights

are owned by the Crown and open to mineral collecting.

The requirements, of the Mining Act and the Aggregate Resources Act, will generally not be

enforced against hobby mineral collecting.

Note

Since hobby mineral collecting is a privilege, it must not conflict with other legitimate uses and

users of the same land. The mineral collector is not allowed to trespass on privately owned land,

nor on Crown land where there are unsafe or hazardous conditions. Collectors are advised to

obtain or consult a claim map to determine land status.

All the laws regarding environmental protection which would be applicable to a prospector's

licence holder, or other persons using the land, are applicable to hobby mineral collectors.

Large Scale or Commercial Collecting

This will be done according to the provisions of the Mining Act or the Aggregate Resources Act,

where applicable. Provisions of the Public Lands Act will be enforced where applicable.

Large scale/commercial collectors must obtain a lease or aggregate permit.

Mineral Collecting where Other's Rights Exist

The following are examples of interests with existing rights; therefore, permission is required

for hobby collecting:

Holder of an unpatented mining claim. The claim holder has the right to explore for the

minerals and the right to lease the claim, if all conditions of the Mining Act have been

met. Therefore, the holder of an unpatented mining claim has existing rights and

interests.

holder of a land use permit

holder of licence of occupation

holder of an aggregate permit or licence

lessee

patent owner

Ontario Northland Transportation lands

summer resort owners

Indian reserves

Permission Required

The person intending to do hobby mineral collecting on land where there is a land owner, must

first obtain permission from the person or company with the existing right. Such permission

should be in writing to protect both parties.

The onus of finding out the status of the land (if a right exists) is on the mineral collector.

Different types of grants and interests in land exist, and more than one can exist on the same

parcel of land. Typical of the status of land or existing right for which a mineral collector

requires permission are listed below:

1. Privately Held Surface Rights: Where the mining rights only are owned by the Crown, hobby mineral collecting is allowed to the threshold limit, contingent on the surface

rights owner's permission. The person intending to collect must follow any terms and

conditions established by the person or company with the existing right. These may

include restrictive conditions on extraction methods. Examples - lease or patent for

surface rights only; land use permit.

2. Privately Held Mineral Rights: Where the surface rights only are held or reserved to the

Crown, the person intending to do the hobby mineral collecting must first obtain

permission from the holder of the mining rights. The Crown cannot establish amounts of

mineral that can be extracted, because the mining rights for this type of land have been

granted or otherwise disposed of. The owner of the mining rights determines the

amounts, terms and conditions of any mineral collecting activities. This may include

charging for extracting the minerals. The owner of the mining rights will be responsible

for meeting all the legislative requirements for mineral extraction. Examples - mining

rights only unpatented mining claims; leased and patented mining rights; permits and

licences issued under the Aggregate Resources Act. This does not exempt the collector

from other requirements under other sections or Acts.

3. Surface Rights and Mining Rights Held Separately: Permission must be obtained from

both holders in cases where the surface rights and mineral rights are held by two different

parties

4. Mining Rights Only Held: The mineral collector needs the permission of the mining

rights holder to take mineral sample(s).

5. Mining and Surface Rights Held: The mineral collector requires the permission of the

mining and surface rights holder to enter the land and take mineral sample(s). The

mineral collector requires permission of both the mining rights holder and the surface

rights holder, when they are not the same party.

6. Surface Rights Only Held: The mineral collector must obtain, from the surface rights

holder, permission to enter on the land; however, the Crown mining rights must also be

open to mineral collecting.

7. Crown Land: By policy, Crown land is open to mineral collecting, with certain

exceptions described below.

Lands Not Open for Mineral Collecting

Some lands are not open for mineral collecting. Usually, other activities are also restricted on

this type of land. Typically these lands can be related to land not open to staking. The following

are examples of lands that are not open for mineral collecting:

Public lands that are posted or otherwise marked to prohibit all or some activities. Check with the local Ministry of Natural Resources office for lands posted under the Public

Lands Act.

Areas which are part of a mining hazard or are hazardous to those attempting to collect

minerals. Check with the Resident Geologist or District Geologist in whose division you

want to collect minerals.

Land that is not Crown land as outlined in section 1 of the Mining Act R.S.O 1990

(referred to as the Act).

Indian reserves as set out in clause 30(e) of the Act

provincial parks (section 31 of the Act), federal parks

Lands withdrawn from staking, sale or lease under section 35 of the Act or one of its

predecessors.

Note: For the purpose of this policy, both the terms gold panning and fossil collecting are

interchangeable with term mineral collecting. Therefore, gold panning and fossil collecting are

subject to this policy.

Collecting Minerals by Institutions

Collecting minerals by institutions for educational purposes, for displays at museums or other

public places as well as for use in scientific research are also subject to this policy.

Definitions

The definitions in section 1 of the Mining Act for minerals, mining claim, mining lands, and

mining rights, patent, and surface rights apply to this policy.

Threshold Limit

What one person can excavate with hand tools only and can carry unassisted, from a

specific site or location. The limit is allowed once per year per site.

Hobby Mineral Collecting

collection for personal pleasure, recreation, or interest, and

the amount collected is below the threshold limit, and

the samples are collected for the collector's personal collection, and

The collector has no intention to sell the minerals collected. Swapping minerals

collected as part of hobby collecting is acceptable. This recognizes that swapping

is part of a personal collection.

Large Scale Mineral Collecting (Commercial Collecting)

mineral collecting or extraction of minerals with the intention of selling, or

the amount of mineral collected is above the threshold limit, or

the collection is done with the use of mechanical equipment: plunger, dynamite,

backhoe, mechanical or power equipment.

Where to Find Information

1. Ministry of Northern Development and Mines

o Mining Lands Consultants: Mining land consultants can help you access up-to-

date claim maps on the internet. These maps show the status of mining lands in

their mining division.

o Internet: These maps can be printed from the internet at CLAIMaps or purchased

from OGS Publication Sales Office in Sudbury, Ontario. The CLAIMS Client

Services database can provide you with the name

of the holder of an unpatented mining claim. This information is available on the

Mining Claims Information (MCI) web site .

o Resident and District Geologists: Resident and District Geologists can advise

collectors about mineral collecting sites in their districts, including areas that are

considered hazardous. They can also advise about publications on mineral

collecting.

2. Ministry of Natural Resources

o District Managers: District Managers can provide information on quarry permits,

quarry licences, land use permits, licences of occupation and land use permits that

have been issued by their ministry. They can give advice about other issues

regarding public lands.

3. Land Registry Offices: For the names of the leaseholders or patent owners, the mineral

collector should go the appropriate Land Registry Office.

Glossary of Terms

The following terms of references are obtained from Section 1 the Mining Act.

Crown

Crown in right of Ontario.

Holder

When referring to the holder of an unpatented mining claim or a licence of occupation

issued under the Mining Act, means the holder of record.

Minerals

All naturally occurring metallic and non metallic minerals, including coal, salt, quarry

and pit material, gold, silver and all rare and precious minerals and metals, but does not

include sand, gravel, peat, gas or oil.

Mining Claim

A parcel of land, including land under water, which has been staked and recorded in

accordance with the Mining Act and the regulations.

Mining Lands

Includes the lands and mining rights patented or leased under or by authority of a statute,

regulation, or order in council, respecting mines, minerals or mining, and also lands or

mining rights located, staked out, used or intended to be used for mining purposes.

Mining Rights

The right to minerals on, in or under any land.

Patent

A grant from the Crown in fee simple or for a less estate made under the Great Seal.

Surface Rights

Every right in lands; other than mining rights.

Unpatented

When referring to land or mining rights, means land or mining rights for which a patent,

lease, licence of occupation or any other form of Crown grant is not in effect.

© Queen's Printer for Ontario, 2012.

Source: http://www.mndm.gov.on.ca/mines/lands/policies/leases_licences_patents/lp701-

1_e.asp# *

* The Mineral Collecting Policy is currently under review by the Ministry of Northern Development

and Mines to ensure that it is consistent with recent changes to the Mining Act, so it is subject to

change, but these changes are not expected to significantly alter the intent or basic principles of the

policy. Please also see “Hobby Mineral Collecting and the Law” which is included separately for more

information about these changes. The Mineral Collecting Policy may also be temporarily unavailable

from the above address while the MNDM is restructures its website, but this most recently available

version of the Policy is included here for informational purposes.

Recreational Access Toolkit Other Resources

Included here are the primary pieces of legislation, policies, and best-practices referred to in the Toolkit. As

contained within this document, they are current only as of the date of this publication and are not guaranteed

to be free of errors. The Ontario’s Highlands Tourism Organization did not create, does not maintain, and is

not in any way responsible for the content of the included documents and provides them for informational

purposes only. Please refer to the original sources for the most current versions, and consult your lawyer,

insurance providers and others as appropriate if specific interpretation is required.

These documents have been assembled for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/.

Recreational Access Toolkit Guide to Implementation

The following outlines sample situations and identifies (in bold) which of the materials found in the Access

Toolkit may be useful (information about recreational use and liability for landowners, legal template

documents, informational resources, etc). This section primarily addresses the recreational user or group, but

an example implementation of the Toolkit for the landowner can be found in Scenario #3. The following

scenarios assume that the wording contained within the provided template documents and informational

materials are appropriate for, and/or have been tailored to suit, the particular circumstance at hand. Please

refer to the rest of this package for more detailed information about the items referenced below. This

information is provided for discussion purposes only – it is not intended, nor should it be used as legal advice.

For advice relevant to your situation, consult a lawyer, your insurance provider, and other advisors as

appropriate.

In General:

If you are interested in Recreational Geology, but are unsure where to find information about potential

collecting sites and points of interest, you may wish to start by consulting the Ontario’s Highlands Guide to

Informational Resources for Recreational Geology (available on our “Resources” page: http://ohto.ca/resources/).

Then, once you have identified a promising location:

1. First verify legal rights status and ownership for the property in question to ensure you can obtain all

appropriate permissions from all affected rights-holders (surface and mineral rights, if held separately,

for example). This may require consultation with the following, or other agencies:

Local Land Registry Office for inquiries about private property

http://www.ontario.ca/en/information_bundle/land_registration/content/STEL02_165696

District office of the Ministry of Natural Resources for general Crown land inquiries

http://www.mnr.gov.on.ca/en/ContactUs/2ColumnSubPage/STEL02_179002.html

Provincial Recording Office of the MNDM for Crown mining rights http://www.infogo.gov.on.ca/infogo/office.do?actionType=servicedirectory&infoType=service&unitId=UNT0031639&locale=en

2. Don’t show up on someone’s doorstep bearing legal documents and expect to be granted access right

away. Be prepared to discuss access and provide copies of the relevant documents for the owner’s

consideration well in advance of your intended use of the property.

3. Negotiating access to private property can be a long process. Keep careful records of all

communications, decisions, terms and conditions, any additional actions required, etc.

4. Keep a full copy of the Toolkit with you during negotiations, and bring extra copies of all legal

documents – both you and the landowner should retain a copy of everything that needs to be signed.

5. Be attentive and listen carefully to the landowner’s needs and wishes; this can help work out solutions.

Scenario #1:

Individual recreational use of Crown land in Ontario.

Much of this package focuses on private property concerns, because these can be the most difficult to

understand and navigate on your own, but it is worth noting that there are usually no special

permissions required for most common recreational uses of Crown land in Ontario (including Hobby

Mineral Collecting).

Some exceptions to this principle may exist in certain areas, however (such as active forestry or fire

areas, closed forest roads or specific areas in provincial parks). For more information about permitted

uses on Crown lands, contact the local District Office of the Ministry of Natural Resources (see above)

or check out the relevant location and land uses on the on-line Crown Land Use Atlas:

http://www.mnr.gov.on.ca/en/Business/LUEPS/2ColumnSubPage/STDU_137972.html

Please also note that Crown land is not entirely static. Various rights may be assigned on a temporary,

or semi-permanent basis to private interests, affecting which recreational activities may be legitimately

carried out, where. Please refer to General point #1 above. If access is for the purpose of Hobby

Mineral Collecting, then the Mineral Collecting Policy also applies to these activities.

Scenario #2:

Individual recreational user(s) approaching a private landowner for permission to engage in

an activity on their rural property, without the backing of a recreational organization,

organized tour, or other managing entity.

What you will need:

1. Waiver of Liability – If risk of liability is the property owner’s major concern over letting you

engage in your activity on their property, a waiver (such as the examples provided in this

package) could be the single most persuasive instrument at your disposal. Both the user(s) and

the landowner must sign and retain a copy of this agreement.

2. Permission to Collect – If access is for the purposes of Hobby Mineral Collecting, Ontario’s

Mineral Collecting Policy recommends that permission be granted in writing in order to protect

both parties. A template for such a letter of permission is included in this package. If access is

for surface activities only, this type of written permission may not be required, but it is good

practice in any event. Keep the signed copy on your person at all times while on the property.

Also Recommended:

1. Recreational Use of Private Rural Property (FAQ) – This section of the Toolkit may also be

useful in helping the landowner understand liability issues.

2. Best Practices – If access is for the purpose of Hobby Mineral Collecting, be prepared to

provide information about the hobby and its best practices, as many people will be unfamiliar

with the activity. Always bring copies of the Mineral Collecting Policy and CCFMS Code of

Ethics (or other best practices appropriate to your situation), and abide by them.

3. Proof of Insurance – Even without the benefit of a recreational association’s insurance

coverage, your homeowners’ insurance may cover you for, and help protect a concerned

landowner against certain unforeseen circumstances. Although it might not help if you bring

action against them, it could help comfort them to know that you are well covered if they

should have cause to file suit against you, or that they may not be held solely financially

responsible should you be injured.

Scenario #3:

Private property owner who wishes to protect themselves from increased risk of liability

resulting from recreational use of their rural property (sanctioned, or otherwise).

What you will need:

1. Inform Yourself – There is much useful information throughout this package that would be of

interest to the property owner who is considering this topic. In particular, read the

“Recreational Use of Private Rural Property (FAQ)” section, and familiarize yourself with the

Occupiers Liability Act, and Trespass to Property Act. If you decide to allow certain recreational

use on your property, you will find the other points below helpful.

2. Risk Management Strategy – It is helpful to take a comprehensive approach to avoiding,

reducing or managing risks on a property. This is a multi-pronged approach that includes

reviewing potential hazards and activities on the property and taking appropriate actions.

Among a variety of strategies, such actions may include management transfer, insurance,

signage, waivers and permissions, as discussed below.

3. Insurance – Whether you wish to allow recreational access or not, it is advisable that you have

a full risk management strategy in place that is aware of the law and consistent with your

insurance coverage. There are both risks, and protections inherent to owning a rural property

– make sure you are aware of them, and are covered for reasonable eventualities, whatever

your intent. If you are approached by a recreational association, also be sure to ask about

supplemental coverage.

4. Signage – Once you have decided your intent regarding access, post appropriate signage to

make your wishes known. In addition to the recommendations found in the Trespass to

Property Act, the Warning Sign included in this package can be adapted according to your

circumstance to help make your intentions clear and help protect you from liability, whatever

your decision with respect to entry.

Also Recommended:

1. Waiver of Liability – If you do wish to allow recreational use, having people sign a waiver of

liability such as the examples included in this package can give you extra protection against

being found financially responsible for damages. Ensure you always have extra copies on hand

– both you and the person entering your property should retain a signed copy for your records.

2. Permission to Collect – If access is for the purposes of Hobby Mineral Collecting, Ontario’s

Mineral Collecting Policy recommends that permission be granted in writing in order to protect

both parties. If access is for surface activities only, this type of written permission may not be

required, but it is good practice in any event; see the example included in this package.

Scenario #4:

Recreational Association or other managing entity (including tourism business) wishes to

facilitate access to another’s private property for its members, or general public use.

What you will need:

1. Insurance – Depending on the circumstance, you may need to offer supplemental coverage

that protects both the individual user you represent (or to whom you are providing a service),

and the landowner upon whose property you will be engaging in the activity (or encouraging

others to do so). First and foremost, however, you should ensure that you have sufficient

liability coverage for yourself and everyone affiliated with your organization when you are

managing an activity, a property, or providing a service to others (such as a guided tour). Note

that the standard of care may change for recreational uses if there is a fee charged for access

to a property. Please consult your lawyer, insurance provider, and others as appropriate for

advice relevant to your circumstance.

2. Access and Management Agreement – This is where the terms and conditions of access are

outlined in a legal agreement between the landowner and the party wishing to gain, or provide

access. It details the rights and responsibilities of both parties in facilitating access and

minimizing risk; an example is included in this Package.

Also Recommended:

1. Documentation – Keeping careful records of all documents and communication is especially

important for a recreational business or association, as there may be more than one person

involved in negotiations, follow-ups, etc.

2. Recreational Use of Private Rural Property (FAQ) – This section of the Toolkit may also be

useful in helping the landowner understand liability issues.

3. Waiver of Liability – Depending on the terms and conditions of your insurance coverage, and

those negotiated in the access agreement, it may also be advisable or desirable to have

individual users sign a waiver at the point of entry, such as one of the included examples.

4. Maintenance – Although a commitment to maintain a property is not necessarily a required

part of an access agreement, having sufficient resources to be able to assume this part of a

landowner’s duties (thereby possibly transferring liability away from the landowner), is often a

persuasive tool in negotiating access.

Scenario #5:

Anyone wishing to publish information which directs people to a private property, or its

owner, for recreational access (such as including directions in a guidebook).

In some cases, it may be desirable and/or advisable to only refer others for access to a site, rather than

actually taking on any direct responsibility for the management of the site, or the activities that might

take place there. In this case, all that may be required is a Communication and Referral for Access

Agreement; a template for which is included in this Package.

Keep in mind, however, that as the provider of information – one who tells someone that they can, or

should, go there or do that – you may still bear some liability for damages resulting from that person’s

actions. Again, consult with appropriate advisors to ensure you are adequately protected.

Even as an individual who may wish to simply blog about their experiences, or otherwise share or publish information about an identifiable person or property, it is still advisable (and may in some cases be legally required) to obtain such permission in writing. This may be done either as indicated in the Permission to Collect letter, or by using the C & R Agreement noted above (depending on whether you intend to encourage others to follow in your footsteps, or just document your experiences).

This document has been prepared for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/. We value your feedback. If you have any comments or questions about the Toolkit, please let us know by contacting us at geology@ohto.ca.

Français

Occupiers’ Liability Act

R.S.O. 1990, CHAPTER O.2

Consolidation Period: From December 31, 1990 to the e-Laws currency date.

No amendments.

Definitions

1. In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes,

(a) water,

(b) ships and vessels,

(c) trailers and portable structures designed or used for residence, business or shelter,

(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. O.2, s. 1.

Common law duty of care superseded

2. Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. R.S.O. 1990, c. O.2, s. 2.

Occupier’s duty

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

4. (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Criminal activity

(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Trespass and permitted recreational activity

(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(a) where the entry is prohibited under the Trespass to Property Act;

(b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier.

Premises referred to in subs. (3)

(4) The premises referred to in subsection (3) are,

(a) a rural premises that is,

(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises;

(b) golf courses when not open for playing;

(c) utility rights-of-way and corridors, excluding structures located thereon;

(d) unopened road allowances;

(e) private roads reasonably marked by notice as such; and

(f) recreational trails reasonably marked by notice as such. R.S.O. 1990, c. O.2, s. 4.

Restriction of duty or liability

5. (1) The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.

Extension of liability by contract

(2) A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.

Reasonable steps to inform

(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed. R.S.O. 1990, c. O.2, s. 5.

Liability where independent contractor

6. (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

Idem

(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.

Idem

(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor. R.S.O. 1990, c. O.2, s. 6.

Application of ss. 5 (1, 2), 6

7. In so far as subsections 5 (1) and (2) prevent the duty of care owed by an occupier, or liability for breach thereof, from being restricted or excluded, they apply to contracts entered into both before and after the commencement of this Act, and in so far as section 6 enlarges the duty of care owed by an occupier, or liability for breach thereof, it applies only in respect of contracts entered into after the 8th day of September, 1980. R.S.O. 1990, c. O.2, s. 7.

Obligations of landlord as occupier

8. (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

Idem

(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.

Definitions

(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.

Application of section

(4) This section applies to all tenancies whether created before or after the commencement of this Act. R.S.O. 1990, c. O.2, s. 8.

Preservation of higher obligations

9. (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

(a) innkeepers, subject to the Innkeepers Act;

(b) common carriers;

(c) bailees.

Employer and employee relationships

(2) Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists.

Application of Negligence Act

(3) The Negligence Act applies with respect to causes of action to which this Act applies. R.S.O. 1990, c. O.2, s. 9.

Act binds Crown

10. (1) This Act binds the Crown, subject to the Proceedings Against the Crown Act.

Exception

(2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road. R.S.O. 1990, c. O.2, s. 10.

Application of Act

11. This Act does not affect rights and liabilities of persons in respect of causes of action arising before the 8th day of September, 1980. R.S.O. 1990, c. O.2, s. 11.

____________________

© Queen's Printer for Ontario, 2012.

Source: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o02_e.htm

Recreational Access Toolkit Hobby Mineral Collecting and the Law

The following is presented for discussion purposes only. It is not intended, nor should it be used, to provide legal advice.

The reader should discuss any particular situation with their lawyer, insurance provider and other advisors.

Hobby Mineral Collecting (as indicated here by initial capital letters) is not a description of a single activity (what

some may know as “Rockhounding”). Instead, it is a legal distinction laid out in Ontario’s Mineral Collecting

Policy. Hobby Mineral Collecting (as defined and governed by the policy) would include panning for gold,

gathering pretty rocks for a garden, picking up a souvenir from the beach, carefully extracting beautiful crystals

from the ground, collecting fossils from a quarry, and so on.

The intent of the Policy is clear in its stated purpose:

“As stewards of minerals in the province, the Ministry of Northern Development and Mines recognizes

hobby mineral collecting for its recreational and educational benefits to the public as a whole. Therefore

the Ministry allows mineral collecting under conditions specified in this policy.”

The rules which govern these activities are also fairly clearly outlined in the Policy, so this document will not

attempt to provide a comprehensive explanation, or legal interpretation of everything it contains. There are,

however, two points which should be discussed:

1. Why is the Policy necessary?

First, it is important to note that the removal of geological material for any reason is strictly governed

and highly regulated in Ontario by the Mining Act, and other legislation. The Mining Act is primarily

concerned with commercial extraction though, so it makes no allowance for recreational enjoyment,

research endeavours, educational activities, or personal use. Without the Policy, Hobby Mineral

Collecting would be subject to the same regulations and requirements as commercial extraction –

making it prohibitive to engage in these activities on a recreational basis.

Recognizing this, the Ministry created the Mineral Collecting Policy to give a special exception to the

Mining Act, thereby allowing certain activities as a limited privilege. If your activities do not qualify as

Hobby Mineral Collecting, then the regulations imposed by the Mining Act would apply. This distinction,

and the conditions set by the Policy, apply equally to both Crown and private properties in Ontario, as

the rules that govern extraction also generally apply equally to both.

There is however, one important distinction between Crown and private lands within the Policy, in that

the collector must first obtain permission from all affected rights holders – primarily surface and mineral

rights holders, but others might be affected. In the case where these rights are held by the Crown

(subject to where others may also have pre-existing rights), the Policy effectively stands as this

permission. For private property or rights, specific permission from the owner or rights holder is

required, with the onus being on the collector to determine rights-status for any intended destination,

and ensure that all necessary permissions have been obtained.

In some cases, a private property may be owned only at surface, with the mineral rights still belonging to

the Crown. As per the original intent and wording of the Policy, one ought to be allowed to collect on

such a property as long as you have the permission of the surface rights owner, but recent changes to

the Mining Act have affected this particular circumstance – which brings us to point #2:

2. Modernizing the Mining Act

In 2010, the Ministry of Northern Development and Mines (MNDM) began phasing in regulatory changes

as part of their process to modernize the Mining Act (bringing it more in line with current industry,

environmental, land-use, and other concerns). This is generally seen as a very positive step by all, but

there is one unintended consequence of these changes which has affected Hobby Mineral Collecting.

The Mineral Collecting Policy contains a section entitled “Lands Not Open for Mineral Collecting”, which

lists certain places where collecting is not permitted. One of them is:

“Lands withdrawn from staking, sale or lease under section 35 of the Act or one of its

predecessors.”

Essentially, withdrawing a property “from staking sale or lease under section 35” also withdraws the

Crown’s permission to engage in Hobby Mineral Collecting at that site. In response to landowner

concerns over certain claim-staking activities in Southern Ontario, the following was recently added to

section 35 of the Mining Act:

s35.1 (2): “In Southern Ontario, for lands where there is a surface rights owner and the mining

rights are held by the Crown, the mining rights shall be deemed to be withdrawn from

prospecting, staking, sale and lease as of the day this subsection comes into force.”

What this means is that collecting is now prohibited on any property described in the withdrawal above

(in Southern Ontario: private ownership at surface, with Crown mineral rights beneath). The Ontario’s

Highlands region is entirely contained within what the Ministry considers to be “Southern Ontario”, so

this withdraw affects all such properties in Ontario’s Highlands.

In general, surface-rights-only ownership is not the norm, so there remain plenty of fully-Crown, or fully-

private properties where collecting is still possible, but it is not uncommon to find that mineral rights

remain the property of the Crown on old mining properties – including a number of “classic” collecting

localities. In this case, it no longer matters if the surface owner grants permission, collecting is not

allowed because the Crown has effectively withdrawn permission for its part.

The Ontario’s Highlands Tourism Organization has been assured by the Ministry that they did not mean

to limit opportunities for Hobby Mineral Collecting in this way, and that they are currently working to

update the Policy so that it is again consistent with its original intent, and current law, but such updates

will take time. As of this writing, there has been no expected release date set by the Ministry, but as

soon as the new Policy is available, we will work to bring it to the attention to interested parties.

In the meantime, everyone is advised to abide by the current (albeit unintended) prohibition of these

activities on any property affected by section 35.1 (2) above.

For more information about the regulations governing Hobby Mineral Collecting, please refer to Ontario’s

Mineral Collecting Policy, and contact the Ministry of Northern Development and Mines directly.

This document has been prepared for the Recreational Geology Project of the Ontario’s Highlands Tourism Organization as a part of its Recreational Access Toolkit. To download a full version of the Toolkit, please visit http://ohto.ca/resources/.