No end in sight for free entry fracas

Wade Carrell, who calls himself a "disgruntled ex-prospector," strapped mining stakes to lamp posts and trees from Rotary Park to the new Kwanlin Dun Culture Centre on May 18.

Whitehorse’s downtown waterfront has been staked.

Wade Carrell, who calls himself a “disgruntled ex-prospector,” strapped mining stakes to lamp posts and trees from Rotary Park to the new Kwanlin Dun Culture Centre on May 18.

Carrell then filed the claims with the territory’s mining recorder. But on Tuesday, the office announced it had rejected the claims.

Carrell is protesting what he calls the territory’s unlawful and unfair management of mining and mineral staking in the territory.

But by staking the land around public paths, children’s parks and the government’s legislature, Carrell’s protest raises another question. What land is up for grabs under the territory’s free-entry staking system?

It’s a question Dieter Gade in Haines Junction is asking.

Gade owns 12 acres in the Nygren subdivision, also known as Bear Creek, about 10 kilometres west of the junction’s municipal boundaries. Most of his property was recently encompassed by staking.

There were no mineral claims within the subdivision when Gade moved there in 2003, he said. But in 2008, Gade and his 25-or-so neighbours learned that the earth beneath their homes had been staked.

A company named African Minerals had staked the entire subdivision, said Gade.

Residents contacted the company, met with its subcontractors and convinced African Minerals to let its claims expire.

By around 2010, Gade checked the mining recorder again. No claims existed in the neighbourhood, he said.

But about a month ago, a neighbour told him to go check again.

“I checked the mining recorder and, indeed, my property is almost 100 per cent covered in quartz claims,” said Gade. “I’m very upset. It’s hard to describe the feeling. A home is a secure place. We moved here to a more remote subdivision in order to enjoy clean air, quietness and wildlife.

“The thought of having a mining company staking this area and including our subdivision without consulting with us is something I just can’t wrap my head around, that in this day and age that’s possible.”

In late July and early August 2011, Solomon Resources Ltd. staked those quartz claims. The Canadian company is exploring for gold, copper, nickel, platinum and palladium in the territory.

The same claims that overlap with Gade’s property also extend into the Kluane Game Sanctuary and abut Kluane National Park. The company didn’t respond to an interview request before the News went to press.

The territory’s free-entry staking system dates back to the 1880s. But free-entry doesn’t mean no rules, said Tim Smith, manager of mining lands with the Department of Energy, Mines and Resources.

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The territory’s Quartz Mining Act describes areas that cannot be staked, including First Nations’ land, territorial and national parks, cemeteries, burial grounds or other church property, land valuable for water-power purposes, agricultural land currently being cultivated and the yard surrounding a residence or dwelling.

Carrell’s downtown claims were rejected under this provision.

“That land is not available,” said Smith. “It’s public use, it’s occupied by the city. It is essentially parkland. That land is under cultivation. It’s been landscaped and is part of a waterfront parkland and on that basis, there’d be no opportunity to issue those, or grant those claims.”

A fuzzy term

But Gade wants to know why his property isn’t protected. Smith said at least some of it is, under a fuzzy legal term called “curtilage.”

It refers to land immediately surrounding a dwelling. Curtilage isn’t defined by the territory’s laws, leaving room for interpretation.

But claims inside someone’s backyard will not be accepted, said Smith.

“Claims can encompass that area, but … you cannot actually do work within that area. Now, if you’ve got four to 500 acres, that’s not all curtilage and there’s still the opportunity to stake within that land.”

Landscaping could be the secret.

“Certainly, I can tell you without any hesitation that if that land has all been landscaped and worked and if there was a post located there, the claim would be refused,” said Smith about Gade’s property.

But Gade’s acres are not all landscaped with gardens and lawns. They are largely left natural with forest and brush.

And the claim posts were hammered into the ground outside of Gade’s property lines. That is why he was not notified before it happened, even though Gade’s property is included within the land those stakes cover.

If Solomon Resources wanted to start working those claims, it would first need to tell Gade, and the mining recorder would help negotiate some type of security.

“Theoretically, I could see tomorrow the bulldozers coming in, not maybe directly on my property but they could come to the border of my property and start tearing down those trees,” said Gade.

“(I have) this feeling of insecurity that the enjoyment of my property can be so easily diminished just for a single company to do some preliminary exploration,” he said. That’s especially so, considering that exploration may never lead to much beyond environmental destruction, he added.

If the company and Gade cannot come to a compromise, the issue would go to the Yukon Surface Rights Board. But that process hasn’t been tested with private property, said Smith.

And the territory tends to see more conflict between neighbours than it does between miners and private landowners, said Brad Cathers, minister of Energy, Mines and Resources.

Gade laughs now at why he didn’t try to stake his own land after African Minerals withdrew their plans for the area back in 2010 – one year before Solomon Resources Ltd. came in.

“With hindsight, maybe that would have been a good idea,” he said.

With that in mind, Gade wonders what’s stopping environmental organizations or First Nation groups from staking all of the Peel River watershed if the staking ban is lifted and the government chooses to not protect the area.

Well, the mining recorder would stop them, said Smith.

Claims could be refused if the intent does not follow the purpose of the Quartz Mining Act, which is for mineral activity, he said.

“And it’s only a Band-Aid solution to a bad policy,” said Gade, who wants to see all residential areas, with significant buffer zones, off-limits to staking.

A case-by-case future

But the government is not willing to change the free-entry system, said Cathers.

Nor is it considering opening up the Quartz Mining Act to better define terms like “curtilage,” he added.

But it is willing to sit down with groups and individuals to work things out on a case-by-case basis. The territory is now considering a staking ban within the municipality of Whitehorse.

That same conversation may start up with Dawson City too, said Cathers.

And the government is looking into ways of preventing conflicts in the future, he added. Helicopter pilots could receive training to avoid harming wildlife, and prospectors could volunteer to notify government agencies about “class one” work, like trenching – something that isn’t obligated to be assessed under the Yukon Environmental and Socio-economic Assessment Board.

“We try our best,” said Cathers. “The basic structure for issuing rights and resolving conflicts of surface and subsurface uses has been in place for most of the Yukon’s existence, and the fact that there aren’t very many problems that occur is something that should also be noted. There aren’t very many clashes that occur and when there are those conflicts they’re typically resolved.”

Cathers encourages anyone who feels the Quartz Mining Act isn’t being applied fairly to contact him and his department.

Carrell, meanwhile, said he’s is taking his waterfront claims to court.

Contact Roxanne Stasyszyn at

roxannes@yukon-news.com

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