Recently the Yukon government struck a deal with a placer miner on the Dome Road in Dawson City which has come under some criticism in the local papers. The deal, in brief, requires the government to move the Dome Road and allow the miner to access the paydirt there under. In exchange, the miner will voluntarily cede his claims at the end of the mining project, allowing the government to put in residential lots.
The deal reconciles the conflict between the rights of the sub-surface mineral holder (the miner) and the rights of the surface holder (the government). The miner, through the staked claims, has a right to access the surface to get to the minerals. As long as that claim exists, any surface development will be subject to the miner’s right of access. The deal in place gives the Slinky mine a window in which to exercise that access, and then the right is removed forever, ending any possible future conflict and allowing for development.
I support this deal, as it recognizes both the rights of both the miner and the surface holder, and comes to a compromise that is acceptable to both. Though the Slinky mine holds rights that are inconvenient to the City of Dawson, those rights cannot simply be ignored or removed through zoning or permitting mechanisms – they must be dealt with fairly.
As a democratic state based on the rule of law it is imperative that we respect lawfully granted rights, even if those rights inconvenience the government down the road (pun intended). To do otherwise is to enter upon a slippery slope wherein rights are ignored or removed at the whim of government and to the detriment of claim holders who played by the rules.
The Slinky mine situation is representative of a growing conflict in the territory, a conflict which pits lawful mineral claim holders against expanding townships and communities. The situation is by-and-large a byproduct of the expansion of town boundaries in the 70s and 80s, which brought mineral claims once outside of certain town boundaries within the purview of the townships.
The townships now wish to develop these expanded areas and, much to their chagrin, find that holders of mineral claims are not exactly pleased when they find the surface of their claims zoned for residential development. This conflict is currently playing out within the boundaries of Whitehorse as holders of mineral claims in the copper belt area face off against developers and the City of Whitehorse over the Raven’s Ridge Development. Much like the Slinky mine situation, the claims in Whitehorse were originally staked outside of municipal boundaries. It is the municipalities that came to the mineral claims, and not the other way around.
The municipalities cannot claim ignorance of the mineral claims, as they are validly listed with the mining registrar. By zoning the surface of claims for development townships set up conflict between developers and mineral claim holders, and then back away saying it is out of their hands, leaving the individuals to fight the issue out in court or with the Yukon Surface Rights Board.
Rather than leaving the parties to fight it out in court, the municipalities and the Yukon government need to come up with a policy that treats claimholders fairly while also allowing for responsible development.
Firstly, the townships need to ensure mineral holders and developers come to terms on developing the surface before zoning for development. In the event no compromise can be made the development should be stalled until expropriation legislation is put in place by the Yukon government.
Secondly, the Yukon government needs to enact modern expropriation legislation that ensures a formula for fair compensation if mineral claims are expropriated. An example of such legislation is the mining rights compensation regulation of the Mineral Tenure Act in British Columbia. The legislation sets out the formula by which mineral claim holders are compensated when the government expropriates mineral claims. If the municipalities want to see development they will have to pay the price for extinguishing the mineral claim holder’s rights.
This may mean significant payments to claim holders, but such payments are necessary to compensate parties who played by the rules and fairly staked claims. It is also short-term pain, as no further claims can be staked in city boundaries, and when claims are bought out no new claims emerge to take their place.
What we cannot do as a territory is ignore the rights of the mineral claim holders because those rights now inconvenience us. Those claims were staked in accordance with the rules. To take the claims away, or otherwise prevent their use, without fair compensation is not only unjust, but strikes at the heart of the rule of law. If one person’s rights can be ignored or removed unfairly, there is no certainty in the system for any of us.
Graham Lang is a Whitehorse lawyer and long-time Yukoner.