Whitehorse Daily Star

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COMPANY LOSES COURT APPEAL – Coyne and Sons Ltd. had unsuccessfully pursued access to surface mining rights in the Raven’s Ridge subdivision, accessible off the Alaska Highway in the Kopper King area.

City bylaw can regulate surface mining: judge

The Yukon Court of Appeal has dismissed a mining company’s appeal which had sought out surface mining rights on a Raven’s Ridge subdivision property.

By Whitehorse Star on August 14, 2018

The Yukon Court of Appeal has dismissed a mining company’s appeal which had sought out surface mining rights on a Raven’s Ridge subdivision property.

Coyne and Sons Ltd.’s appeal was heard by Chief Justice Robert Bauman, Justice Susan Cooper and Justice Gregory Fitch on May 6.

Bauman issued a written decision last month. The decision being appealed was made by Supreme Court Justice Ron Veale on Oct. 18, 2017.

Bauman summarized his decision by saying that Veale made the correct decision when he determined that a municipality’s land use bylaw can regulate all land uses, which include surface mining.

He added that Veale was not mistaken when he refused to deem that the territory’s mining legislation or the City of Whitehorse’s land use bylaw did not apply in this case.

Bauman explained that the land use bylaw would have superseded the judge’s declaration.

He said Coyne’s rights may be academic, but the company has not approached the city to pursue changes to the land use bylaw.

He explained that this appeal involves difficult legal issues, as it’s asking the court to consider the applicability of the territory’s mining legislation and the city’s ability to apply its land use bylaw as per the Municipal Act.

Bauman addressed Veale’s decision. Coyne had wanted five declarations last October.

The first declared that Coyne owned the Copper Plus interests on the affected properties.

The second declaration determined that the company had a right to access the surface of the property.

There were some limitations. The mining must be done in a “reasonable manner” subject to the Yukon Environmental and Socio-economic Assessment Act and the Quartz Mining Act. The mining also must not disturb the land nor change its condition.

The third declaration was not granted. Coyne wanted the courts to say that Raven’s Ridge, the land owner, could not deny them access to the surface.

The fourth was not granted. It asked for the courts to deem the city’s plans and bylaws for this property as invalid.

The fifth allowed Coyne to be able to pursue this action regardless of a time limit expiring. Veale reasoned that a void bylaw can be challenged at any point and time.

Bauman went over the facts of the case before getting to his reasons.

Coyne gained the Copper Plus interest on Dec. 8, 1998.

Raven’s Ridge took ownership of the property from Corvus Corax Holding Ltd., a related company, on April 22, 2013.

Raven’s Ridge developed a rural residential subdivision on neighbouring lots. Road construction is underway in the subdivision.

Coyne has done some preliminary mining exploration in the area but lost all access rights once the litigation began.

Part of the property falls within the city’s boundary.

The city has passed four Official Community Plans (OCPs) and eight zoning bylaws in the area. Mining was not supported in either legislation.

Bauman again noted that Coyne did not push the city to amend its zoning to permit mining. The company did argue against a 2010 decision to allow residential development on the lot in question.

This zoning allowed manufactured homes and single-detached housing to be on the property. Parks were also permitted.

Coyne brought forward its litigation after city council approved Raven’s Ridge’s subdivision request on Sept. 12, 2012.

Coyne identified several issues with Veale’s decision. The company argued that he had been mistaken to conclude that their mineral rights were subject to the Quartz Mining Act.

It feels he had also erred in using his discretion when he declined some of the declarations.

Coyne argued that Veale had been wrong to say the city can regulate surface mining and that the 2012 zoning decision did not negatively affect the company’s mineral rights.

Bauman next moved to his justification for dismissing.

He said to the declarations requested, this would mean the court would have to consider the city’s previous plans, zoning and decisions affecting the property.

He said the company is claiming that municipalities do not have the power to take away the rights of land owners.

The company also said the case law proves a municipality’s land use bylaw cannot regulate mining.

Bauman feels Coyne does not understand the concept of an OCP and is asking the court to “explain away” the case law.

He said municipalities do have the power to regulate land use, and this power has the potential to go against land owners’ rights.

He clarified this would be used to protect an “overall greater public interest.”

Bauman reviewed the city’s OCP. He said the plan has provisions to constrain council and individuals with an exception for “lawfully entitled” land owner rights. He added that Whitehorse’s plan is similar to other municipalities.

“That is to say by virtue of adopting a new OCP, a municipal council cannot and does not impair any rights to which an owner is lawfully entitled under the zoning bylaw,” Bauman said.

The city must abide by the plan. According to the Yukon Act, city council cannot “enact any provision or carry out any development contrary to or at variance with the plan.”

Bauman felt Coyne was also missing the point of the land use bylaw. This provision ensured land owner rights would not be impaired. He clarified that it applies at the planning stage.

That being said, he felt it would be nonsensical to take away the OCP’s teeth.

The justice added that an OCP in and of itself would not prevent Coyne from pursuing mining activities in the area. The company would be able to mine there until the city changed the land’s zoning.

“The simple answer to this proposition is that it is not the OCP impairing Coyne’s rights,” Bauman said.

The zoning bylaw is what affected the mining rights, he added.

He explained that an OCP is a plan that focuses on future land uses within a municipality.

The OCP may not reflect the present. The land use bylaw regulates use.

Bauman pointed out that a land use bylaw does not have provisions that prevent “impairment of rights” with an exception to “non-conforming uses.”

Bauman said Coyne has not argued nor presented evidence that its surface access is a non-conforming use.

Coyne argued that mining regulation is not included in the zoning power as per the Municipal Act.

Bauman felt the wording in Section 289 of the act, “use and development of land,” means a municipality can regulate mining in its jurisdiction, subject to territorial legislation.

Overall, Bauman concluded that Veale had been justified in using his discretion to make his decision. Cooper and Fitch agreed.

Bauman also awarded costs to the city, Corvus and Raven’s Ridge.

Comments (5)

Up 0 Down 0

Ilove Parks on Aug 24, 2018 at 4:33 pm

Can we have a city bylaw that puts mayor and council under oath to tell us how they make decisions.

I often follow what they say and it often makes no sense.

Up 4 Down 0

mento on Aug 18, 2018 at 10:10 am

Looks like the big shake down is not going to happen for the miners. I do think however that they should be compensated for actual proven costs incurred in doing exploration work and paying for their claim. Like if they paid a hundred dollars cash a year for 15 years, they should get their $1500 back. At least now the law is clear, so that was a service to the community.

Up 8 Down 4

ProScience Greenie on Aug 17, 2018 at 10:59 am

I was a strong supporter independent small-scale woodcutters including them being able to have long term tenure to woodlots. I naively assumed that support would be returned to family placer operations and hard rock prospectors.

At the end of the day these decisions will have implication on private land ownership so be careful what you wish for.

Also don't forget that we're talking about wild lands currently being ripped up for-profit housing development as opposed to a very slim chance of the same land being ripped up for mineral extraction purposes. The real losers are the birds and other critters that made the place their home. The real winners are the real estate, development and slumlord barons.

Up 12 Down 8

woodcutter on Aug 15, 2018 at 4:13 pm

Should be a wake up call, that subsurface rights holders do not have a paramount claim over other interests associated with land. For too long this industry has been privileged to the point that they feel excluded from other rights associated with the land, be it land owners, municipal and first nation governments.

For too long there has been a blank check written, its about time the courts provided us protection.

Up 41 Down 8

Wilf Carter on Aug 15, 2018 at 11:57 am

This is interesting. The Judge should have sent this to Yukon Government not make a ruling on it because the Judge does not have the power to make a judgement on this type of request. I have seen this before. Judges are not here to approval public policy, elected officers are.

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