Understanding Surface and Subsurface Land Rights in Ontario, Canada

In Ontario, when you own land, you generally own not only the surface—the land you see and build on—but also what’s beneath it (subsurface rights) and sometimes what’s above it (air rights). However, these rights can be separated and dealt with independently. The division of land into surface and subsurface rights plays a significant role in property law, especially when mineral resources or development considerations come into play. 

Surface rights refer to the right to use and occupy the visible and accessible portion of the land. This includes the ability to build a home, farm, landscape, or otherwise use the land for personal or commercial purposes, subject to zoning and municipal bylaws. Most residential property owners in Ontario only actively use their surface rights and are not even aware that subsurface rights may be separate or restricted.

Subsurface rights, also called mineral rights, relate to what lies beneath the ground—such as minerals, oil, gas, or gravel. In Ontario, these rights can be retained by the Crown (i.e., the provincial government) or severed and transferred to third parties. In many cases, especially in rural or undeveloped areas, the government has reserved mineral rights to itself, even though the surface of the land is privately owned. This means a property owner may not have the right to extract or profit from what lies beneath their land, or may need government approval to do so.

When subsurface rights are severed from surface rights, it creates a situation where two different parties can legally own and control different layers of the same land. This is more common in resource-rich areas or lands with historical mining activity. Severance must be formally registered in the land registry system and will appear in the property’s title history. Ontario’s Mining Act governs many of the rules around subsurface exploration and development, particularly when those rights are Crown-held or leased to mining companies.

While this division doesn’t usually affect everyday residential property owners, issues can arise when a third party with subsurface rights seeks access for exploration or extraction. In such rare cases, property owners may have limited ability to refuse access, though they are typically entitled to notice, compensation for surface damage, and consultation under applicable laws. Understanding whether your property includes or excludes mineral rights is important—especially in rural transactions—and can be confirmed through a title search.

In conclusion, land ownership in Ontario is layered. While most property owners focus on the surface, the division between surface and subsurface rights can carry legal, financial, and practical implications. If you’re buying land—especially in rural or undeveloped areas—consulting a real estate lawyer to review title documents and explain your full rights is a smart and necessary step.

The content on this post is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship.