Whitehorse Daily Star

Housing would foil drilling plans, lawyer says

The Yukon Supreme Court is hearing a lawsuit between a local mining company,

By Emily Blake on March 30, 2017

The Yukon Supreme Court is hearing a lawsuit between a local mining company, the City of Whitehorse and developers, involving copper mining claims.

Wednesday was the first day of the proceedings.

The suit by H. Coyne and Sons Ltd. against the city, Corvus Energy Inc. and Raven’s Ridge Development Ltd. involves a complicated dispute over surface and sub-surface interests on land near Mt. McIntyre.

Blair Shaw, the lawyer for H. Coyne, concluded his arguments Wednesday on why the mining company should have access to copper-plus on the lot.

He explained that two lots, which the lot in dispute intersects, were originally granted by the Crown as mining claims in 1905 and 1906.

These lots were eventually transferred to the Hudson’s Bay Company, which, in 1992, sold surface rights to the land while reserving the mineral rights.

H. Coyne and Sons acquired these mineral rights for $100,000 in 1998.

According to an affidavit by James (Jim) Coyne, at the time, he was assured by the Yukon Electrical Co. Ltd., the owner of the surface rights, that it intended to use the land for electrical transmission towers, which would still allow Coyne to drill for minerals.

Shaw referred to the area in court as “having some of the highest mineral potential of all of Coyne’s holdings in the copper belt.”

But with an option to purchase the surface rights in 2007, Raven’s Ridge began to work on having the land re-zoned and subdivided into residential lots.

Under the 2010 Official Community Plan (OCP) and a 2012 by-law, the city approved the subdivision of the lot into 16 residential country parcels.

Raven’s Ridge formally purchased the land in 2013 from ATCO Electric Yukon (formerly Yukon Electrical).

Shaw said the re-zoning and subdivision decisions were made with the knowledge by all parties that a mineral claim to the land was involved.

If phase two of the housing project goes forward, Shaw said, Coyne would not be able to drill to access mineral rights.

He noted that Coyne has paid taxes on the land and has spent $360,000 on drilling and testing.

At the time, Coyne opposed the re-zoning and asked the city for further clarification on how the surface and sub-surface rights would be accommodated.

But Shaw said this never happened.

Mark Radke, a director with Raven’s Ridge, initially agreed to allow Coyne reasonable mining access, as the area in dispute is a small section of the lot intended for development.

And for a while, Coyne was drilling in the area with agreement by all parties.

“The city might have been under the impression that it had worked out when it really hadn’t,” said Shaw.

But under the OCP, the city told Coyne that mining in the area wasn’t allowed, and recommended that he apply for an amendment to the OCP.

Shaw said Coyne thought this would be a “futile exercise” considering the concerns he had raised earlier had not heeded the city’s re-zoning.

Coyne then brought the action before the court, which now must decide who has priority rights to the land.

“This is a very specific situation where rights come into conflict,” Shaw told the court.

“We need the court’s assistance to make a declaration.”

Shaw argues that H. Coyne and Sons’ mineral rights mean they have an implied right of access to those minerals.

“Otherwise, there’s no point in having the rights,” he said.

He also argued that the city has no jurisdiction to impair mining rights.

Therefore, the OCP, re-zoning bylaw, and subdivision resolution are invalid, Shaw said.

“The reason why we don’t give municipalities a veto over mining is that there would never be mining in residential areas,” he told the court.

Raven’s Ridge, Corvus and the city are making their arguments today.

Comments (8)

Up 27 Down 0

jean on Apr 1, 2017 at 8:42 pm

The CoW allowed residential development over the claims; if the miners have a problem with that, then they can sue the CoW for compensation.

Up 12 Down 7

Mutch on Mar 31, 2017 at 9:25 pm

Mining will dry up in the north by 2020, with it YTG, supporting construction and retail. You can already see it over the last couple years. That's what happens when people who fail elsewhere come here to capitalize and don't plan for a future. This is a welfare state of temp workers and govvies whose failed policies in other provinces and territories also do not work here. Have fun....

Up 44 Down 6

RJ on Mar 31, 2017 at 2:47 pm

The point I see here is the mining company had the right to conduct mining and exploration activities before the City changed the OCP to allow a subdivision development to proceed. The City shouldn't have done so without clearing the subsurface rights issue.

Up 40 Down 9

ProScience Greenie on Mar 31, 2017 at 10:58 am

While the mining laws could use some tweaking this is mostly about the City of Whitehorse and the developers being greedy and ignoring rules, laws and existing land tenure. It's not as if there is no land available to build on as Whitehorse's land base is so huge.

Up 24 Down 12

BnR on Mar 31, 2017 at 6:35 am

"“The reason why we don’t give municipalities a veto over mining is that there would never be mining in residential areas,” he told the court"
Maybe municipalities should have that veto, because mining in a residential area is not compatible.
Didn't we just go through this in Dawson at the tailings subdivision?
Time to thoroughly overhaul the legislation.

Up 22 Down 26

Home Owner on Mar 30, 2017 at 8:38 pm

If someone came and told me that the property that my house sits on had been staked to become a part of a mining claim and that now the miner could demolish my house to access any minerals underneath it I would be upset. That is what this is about. Coyne wants to be able to do whatever he wants on his claims despite houses and roads there. This is ridiculous and should be thrown out.

Up 31 Down 32

Stanley Miller on Mar 30, 2017 at 3:30 pm

It's only fair that miners can access subsurface rights anywhere in the Yukon.

They are protected by law and should be able to tunnel and extract ore even within the downtown area of Whitehorse. Little sarcasm here.

Up 51 Down 16

moe on Mar 30, 2017 at 3:12 pm

The mining laws up here are complete insanity.

This problem has been kicked down the road long enough, becoming a bigger and bigger problem as it rolls along. The territory needs to get its act together and update mining laws. A law that was in place in 1905 when these mineral rights were registered is long overdue for review. Same goes for our joke 'royalties', such as 20 cents an ounce for placer gold.

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