A miner with subsurface claims under a portion of Whitehorse’s Raven’s Ridge residential development has the right to access the surface for exploration and mining activities, a Yukon judge has found.
In a decision made public Oct. 24, Yukon Supreme Court Justice Ron Veale said H. Coyne & Sons Limited, which has two subsurface claims for copper and copper mixes that overlap a surface lot owned by Raven’s Ridge, has a “common law right of access” despite the developer’s protests.
Coyne owns the title to subsurface copper and copper alloys, known as “copper plus,” on Lots 49 and 50, which it got from federal Crown Grants issued in 1905 and 1906. Although the original grants included surface rights, those were severed in 1992, and the title was eventually transferred to Raven’s Ridge in 2013.
Raven’s Ridge has since completed a rural residential subdivision next to the claims and built roads and subdivided lots on top of the claims which haven’t been sold yet.
In his decision, Veale wrote that Coyne says it has done over $2 million worth of exploration work and was doing so when Raven’s Ridge denied it further access, triggering the lawsuit.
Veale noted that typically, before the owner of a claim can actually start mining, there must be recommendation from the Yukon Environmental and Socio-Economic Assessment Board, but that it was his understanding “that no approvals are required for Class 1 activities, which are the only exploration activities that have been undertaken by Coyne to date.”
Veale disagreed with a submission from Raven’s Ridge lawyer suggesting that the severance of surface and subsurface rights “effectively terminated Coyne’s right of access because there is no statutory or implied right of access.”
“Counsel for Coyne submits that there is a common law right of access for the holder of a mineral right that does not require an express right of access to be reflected in a transfer agreement,” Veale wrote.
“I have concluded that there is a common law right of access to the surface for the holder of the subsurface mineral…. I conclude that Raven’s Ridge cannot prevent Coyne from exercising its right of access to exercise Coyne’s mineral rights.”
Coyne’s right of entry is not absolute, though, Veale wrote, noting that the company and its activities are still subject to the Yukon Environmental and Socio-economic Assessment Act and Quartz Mining Act which require, among other things, for Coyne to provide security and full compensation for damages to Raven’s Ridge. Coyne is also subject to city bylaws, which has the jurisdiction to prohibit mining within city limits under the Yukon Municipal Act.
Veale dismissed Coyne’s request to find Whitehorse’s 2010 Official Community Plan, 2012 Zoning bylaws and approval of the Raven’s Ridge subdivision invalid.
Contact Jackie Hong at jackie.hong@yukon-news.com