A mining company’s lawsuit against the territorial government over claims in the Whitehorse Copper Belt is premature, a Yukon Supreme Court judge said this morning.

Barry Ernewein, president of Lobo Del Norte Ltd., sued the government in February, alleging legislation enacted in 2006 prohibits him from mining his claims in the Mount Lorne Development Area.

Both he and territorial government lawyer Peter Sandiford appeared in court this morning before Justice Randall Wong.

Sandiford argued that Ernewein’s claim was either filed too late – beyond the time period after an injurious action, which in Ernewein’s view is the passing of the legislation – or is premature.

Sandiford said because Ernewein hasn’t yet applied to mine, his ability to mine the claims hasn’t yet been denied by the government.

“At this point, there is nothing to try,” Sandiford said.

Wong agreed.

If Ernewein does apply and his application is rejected, then there would be cause for action, he said.

“You’ve started this on a shotgun approach and really it should be a rifle approach,” Wong told Ernewein.

Ernewein said, though, that the legislation clearly doesn’t allow for mining.

In his statement of claim, he points to a regulation of the Area Development Act, which divides the Mount Lorne Development Area into zones and regulates use of the land in each zone.

It bans any use that creates an increase in traffic, noise, vibration, smoke, and dust, among other restrictions.

These are all consequences of mining, Ernewein argues in his statement of claim, rendering his staked claims “economically useless.”

Wong adjourned the matter generally, so if Ernewein applies and is denied, he can bring the lawsuit back to court.

Lobo Del Norte also sued the City of Whitehorse in 2013, alleging the city’s Official Community Plan prevents the company from mining its claims near Mary Lake because the area falls under the plan.

Ernewein said at the time he wasn’t consulted when the plan was being drafted.

That case was heard in court in January. A decision has not yet been handed down.