Judgments

[1996] 1 F.C. 832

T-576-94

Canadian Parks and Wilderness Society (Applicant)

v.

Minister of Indian Affairs and Northern Development, Engineer of the Department of Indian Affairs and Northern Development (Designated under the Territorial Land Use Regulations), the Attorney General of Canada, Westmin Resources Limited and Newmont Mines Limited (Respondents)

and

Gwich’in Tribal Council, Yukon Chamber of Mines and Yukon Prospectors’ Association (Intervenors)

T-1136-94

Canadian Parks and Wilderness Society (Applicant)

v.

Minister of Indian Affairs and Northern Development, Engineer of the Department of Indian Affairs and Northern Development (Designated under the Territorial Land Use Regulations), the Attorney General of Canada, Westmin Resources Limited and Newmont Mines Limited (Respondents)

and

Gwich’in Tribal Council, Yukon Chamber of Mines and Yukon Prospectors’ Association (Intervenors)

Indexed as: Canadian Parks and Wilderness Society v. Canada (Minister of Indian Affairs and Northern Development) (T.D.)

Trial Division, Reed J.—Vancouver, September 26; Ottawa, November 29, 1995.

Environment — Application for declaration Westmin required to obtain land use permit pursuant to Territorial Land Use Regulations before engaging in exploratory mining activities in Yukon, and for order quashing decision to issue permit to “walk” bulldozer into site — Environmental screening report considering effects of driving bulldozer to site, not end use — Claims obtained pursuant to Yukon Quartz Mining Act — Territorial Lands Act, s. 3(3) providing nothing in Act construed as limiting operation of Yukon Quartz Mining Act — Yukon Quartz Mining Act, s. 76(1) conferring right to use surface of claim to extent Minister considering necessary for efficient, miner-like operation of mines — Territorial Land Use Regulations not governing exploratory mining activity on mineral claims in Yukon — Regulations neither relating to efficient, miner-like operation of mining activities nor imposed by Minister — EARP Review not required to consider directly related impacts, cumulative effects — No necessary connection between “walking” bulldozers to site, facilitating exploratory activities — Not attempting to circumvent effective review process by having project evaluated piecemeal — Nomination as heritage river, lack of notice to applicant, intervenor relevant considerations, but declaration meaningless as bulldozer completed work, removed from site.

These were applications for a declaration that Westmin Resources Limited be required to obtain a land use permit, pursuant to the Territorial Land Use Regulations, before engaging in exploratory mining activities on its claims site in the Yukon and an order quashing the decision to grant a permit to “walk” a bulldozer into the site. Westmin applied for a permit to drive a bulldozer across undeveloped federal lands to its mining claim site straddling the Bonnet Plume River, which had been nominated as a Canadian heritage river. The bulldozer was to be used to build an airstrip, to facilitate the establishment of a camp and exploratory work on the mineral claims. Neither the Canadian Parks and Wilderness Society nor the Gwich’in Tribal Council were consulted before a land use permit was issued. The environmental screening report considered the effects of driving the bulldozer to the claim site, but not the activities in which the bulldozer would be engaged once it arrived.

The Territorial Lands Act applies to Crown land in the Northwest and Yukon Territories. Subsection 3(3) states that nothing in the Act shall be construed as limiting the operation of the Yukon Quartz Mining Act. Westmin’s mineral claims were obtained pursuant to the Yukon Quartz Mining Act, subsection 76(1) of which confers on claim holders the right to all minerals found and the right to use the surface of the claim to such extent as the Minister may consider necessary for the efficient and miner-like operation of the mines and minerals contained in the claim. The Territorial Land Use Regulations provide for land use permits.

The issues were (1) whether the Territorial Land Use Regulations applied to exploratory mining activity on mineral claims in the Yukon; and (2) whether the EARP Review ignored relevant considerations i.e. the end use to which the bulldozer would be put when it reached the site, and the location of the claims site on a Canadian heritage river candidate.

Held, the applications should be dismissed.

(1) The Territorial Land Use Regulations do not govern exploratory mining activity on mineral claims in the Yukon because of subsection 76(1) of the Yukon Quartz Mining Act. They neither relate to the efficient and miner-like operation of the mining activities, nor are they imposed by the Minister. They are general land use regulations promulgated by the Governor General in Council.

In order to regulate a use, it is necessary to have the authority to prohibit the use. The Regulations should not be interpreted as regulating, but not prohibiting the rights given under the Yukon Quartz Mining Act.

That the Regulations were intended to govern some mineral claim activity does not mean that they were intended to regulate claims under the Yukon Quartz Mining Act. They apply in the Northwest Territories and to certain mining activities in the Yukon which have not been exempted from the land use permit requirements, e.g. oil and gas exploitation. That subsection 3(3) originated in the pre-1970 legislation when the scope of its application was limited to the sale or lease of territorial lands does not so limit its present application. Subsection 3(3) was retained as limiting the application of the whole Act, including the new land use provisions.

It is not illogical to require that a land use permit be obtained to walk the bulldozers into the site but not to engage in exploratory mining activities. A claim holder has the right to enter on the land covered by the claims, not to enter the land of a neighbour for the purpose of reaching the claim site. If it is necessary to travel over land owned by another in order to gain entry to the mineral claims, then such permission as may be required from the land owner, in this case the Crown, must be obtained.

The mining claim sites are territorial lands. A mining claim is an interest in the land. That an interest in the land is vested in another does not mean that the land is vested in another. Land is vested in the holder of the freehold, and since the Crown has never given a freehold grant of this land, it is still vested in the Crown. In any case, the Crown retains ownership of the surface rights, which is what is relevant for the purposes of the land use provisions of the Territorial Lands Act.

(2) The issue of the adequacy of the EARP Review was somewhat moot since the bulldozer has completed its work and been removed from the site. The argument that directly related impacts must be considered as well as those flowing from the activity for which a permit was required had to be rejected. There was no necessary connection between the two activities herein. The bulldozer neither had to be used to facilitate exploratory activities nor did it have to be “walked” in. Nor could the argument that the cumulative effects must be considered be accepted. The cumulative effects doctrine was designed to ensure that the full impact of an activity is not minimized by dividing a proposal into several different applications and seeking to have the environmental impacts of each assessed without regard to the others. This case did not involve an attempt to circumvent an effective review process by having the project evaluated piecemeal. It was simply a situation where an ancillary aspect of a developmental activity was subject to review because a government issued permit was required, while the main activity was not.

The screening report did not consider the fact that the Bonnet Plume had been nominated and accepted as a heritage river candidate, a relevant factor which should have been considered. The lack of notice to the Canadian Parks and Wilderness Society and the Gwich’in Tribal Council was also relevant, but an order declaring the permit invalid would not be meaningful because the bulldozers have already done their work and been removed.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Dominion Lands Act, R.S.C. 1927, c. 113.

Dominion Water Power Act, R.S.C., 1985, c. W-4.

Environmental Assessment Act, S.S. 1979-80, c. E-10.1.

Environmental Assessment and Review Process Guidelines Order, SOR/84-467.

Environmental Protection (Impact of Proposals) Act 1974, No. 164, 1974 (Aust.).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).

Mineral Act, R.S.B.C. 1936, c. 181.

Mines Right-of-way Act, R.S.B.C. 1936, c. 187.

National Parks Act, R.S.C., 1985, c. N-14.

Park Act, S.B.C. 1965, c. 31 (now R.S.B.C. 1979, c. 309).

Planning and Development Act (The), R.S.S. 1978, c. P-13.

Quartz Mining Regulations (1898), 31 The Canada Gazette 2225.

Territorial Land Use Regulations, C.R.C., c. 1524.

Territorial Lands Act (The), S.C. 1950, c. 22.

Territorial Lands Act, R.S.C. 1970, c. T-6, ss. 3.1 (as enacted by R.S.C. 1970 (1st Supp.), c. 48, s. 24), 3.2 (as enacted idem), 3.3 (as enacted idem).

Territorial Lands Act, R.S.C., 1985, c. T-7, ss. 2 “land”, “territorial lands”, 3(3), (4) (as enacted by R.S.C., 1985 (3rd Supp.), c. 7, s. 2), 4, 5, 6, 7, 23(a ).

Yukon Placer Mining Act, R.S.C., 1985, c. Y-3.

Yukon Quartz Mining Act (The), S.C. 1924, c. 74.

Yukon Quartz Mining Act, R.S.C., 1985, c. Y-4, ss. 50, 57(1), 76(1).

Yukon Waters Act, S.C. 1992, c. 40.

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

R. in right of the Province of British Columbia v. Tener et al., [1985] 1 S.C.R. 533; (1985), 17 D.L.R. (4th) 1; [1985] 3 W.W.R. 673; 32 L.C.R. 340; 59 N.R. 82; 36 R.P.R. 291; Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159; (1994), 112 D.L.R. (4th) 129; 20 Admin. L.R. (2d) 79; 14 C.E.L.R. (N.S.) 1; [1994] 3 C.N.L.R. 49; 163 N.R. 241; Murphyores Incorporated Pty Ltd. v. The Commonwealth (1976), 136 C.L.R. 1 (Aust. H.C.); Village of Kannata Valley et al. v. Kannata Highlands Ltd. (1983), 13 C.E.L.R. 1; 28 Sask. R. 259 (Q.B.); Sunshine Village Corp. v. Canada (Minister of Canadian Heritage), [1995] F.C.J. No. 1180 (T.D.) (QL); Thomas v. Peterson, 753 F.2d 754 (9th Cir., 1985).

REFERRED TO:

Halferdahl v. Whitehorse Mining District (Mining Recorder) (1990), 30 C.P.R. (3d) 183; 31 F.T.R. 303 (F.C.T.D.); Halferdahl v. Canada (Mining Recorder, Whitehorse Mining District), [1992] 1 F.C. 813 (1992), 41 C.P.R. (3d) 533; 140 N.R. 272 (C.A.); Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 149 N.R. 1; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; [1994] 7 W.W.R. 1; (1994), 92 B.C.L.R. (2d) 145; 4 C.C.L.S. 117; Beakhurst et al. v. Williams, Mining Recorder for Nahanni Mining District and Cadillac Explorations Ltd., [1971] 1 W.W.R. 230 (N.W.T. Terr. Ct.); Uranerz Exploration & Mining Ltd. v. Blackhawk Diamond Drilling Inc. (1989), 63 D.L.R. (4th) 350; [1990] 1 W.W.R. 563; 36 C.L.R. 281; 80 Sask. R. 124 (Q.B.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir., 1973).

AUTHORS CITED

Blue, G. “Exploration Dispositions, Priority and Registration”, in Bartlett, R. (ed.), Mining Law in Canada. Saskatoon: Continuing Legal Education, Law Society of Saskatchewan, 1984.

APPLICATIONS for a declaration that Westmin Resources Limited was required to obtain a land use permit, pursuant to the Territorial Land Use Regulations, before engaging in exploratory mining activity on its Yukon mining claim site, and for an order quashing the decision to grant a permit to “walk” a bulldozer into the site. Applications dismissed.

COUNSEL:

Stewart Elgie for applicant.

Harry J. Wruck, Q.C. for respondents Minister of Indian Affairs and Northern Development, Engineer of the Department of Indian Affairs and Northern Development, and the Attorney General of Canada.

Michael Tourigny for respondent Westmin Resources.

Brian J. Wallace, Q.C. and Ron A. Skolrood for respondent Newmont Mines.

Brian A. Crane, Q.C. for intervenor Gwich’in Tribal Council.

Bruce L. Willis, Q.C. for intervenors Yukon Chamber of Mines and Yukon Prospectors.

SOLICITORS:

Stewart Elgie, Vancouver, for applicant.

Deputy Attorney General of Canada for respondents Minister of Indian Affairs and Northern Development, Engineer of the Department of Indian Affairs and Northern Development, and the Attorney General of Canada.

Lang Michener Lawrence & Shaw, Vancouver, for respondent Westmin Resources.

Lawson Lundell Lawson & McIntosh, Vancouver, for respondent Newmont Mines.

Gowling, Strathy & Henderson, Ottawa, for intervenor Gwich’in Tribal Council.

Preston, Willis & Lackowicz, Whitehorse, Yukon for intervenors Yukon Chamber of Mines and Yukon Prospectors.

The following are the reasons for order rendered in English by

Reed J.: Two issues are raised by these applications. The first, in file T-1136-94, is whether the Territorial Lands Act, R.S.C., 1985, c. T-7, applies to exploratory mining activity on mineral claims in the Yukon. If it does, then, before such activity can be undertaken a land use permit is required, under the Territorial Land Use Regulations,[1] and an environmental review would be required, pursuant to the Environmental Assessment and Review Process Guidelines Order[2] (an EARP Review).

The second issue, in file T-576-94, is whether the EARP Review that was done, with respect to the “walking” of a bulldozer into the mineral claims site in question, ignored relevant considerations. The considerations, which it is alleged were ignored, are: the end use to which the bulldozer would be put when it reached the site and the location of the claims site. The bulldozer was to be used to build an airstrip, to facilitate the establishment of a camp and the pursuit of exploratory work on the mineral claims. The claims in question straddle the Bonnet Plume River—a river which has been accepted for nomination as a Canadian heritage river.

The applicant, the Canadian Parks and Wilderness Society, and the intervenor, the Gwich’in Tribal Council, seek a declaration pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] that the appropriate official of the Department of Indian Affairs and Northern Development (DIAND) require that the respondent Westmin Resources Limited (Westmin) obtain a land use permit, pursuant to the Territorial Land Use Regulations, before engaging in exploratory mining activities on its claims site. They also seek an order quashing the decision to grant Westmin a permit to take bulldozers into the site.

Facts

On July 15, 1993, Westmin applied to the land use office of DIAND, in Whitehorse, for a permit to drive a bulldozer from McQuesten Lake to a location in the Fairchild Lake region of the Bonnet Plume River Valley. The respondent Westmin and the respondent Newmont Mines Limited (Newmont) have a joint venture to exploit claims owned by Westmin in that location. The claims straddle the Bonnet Plume River. The bulldozer was to be driven across undeveloped federal lands to the claim site. The claims had been staked by Westmin between June 27, 1992 and June 29, 1993. A list of the claims was appended to the permit application. The planned route was 200 kilometres in length and to be over existing bush trails.

The exploratory work to be undertaken on the site was to include: the establishment of a camp to house approximately 23 people; the use of a diesel generator; the use of approximately 6,000 gallons of fuel; exploratory drilling to extract core samples at approximately twelve different locations. The drilling would require the use of approximately 15,000 gallons of water per day. The water was to be drawn from the river and, then, after use discharged onto the land surface of the claim site. Samplings from the bed of the river, as well as from numerous locations on land, were also to be taken. This sampling involves the removal of pieces of rock (5m²) at periodic intervals.

DIAND’s land use office sought comments on the application for a permit to take the bulldozer to the site, from a number of government and non-government officials. The applicant, the Canadian Parks and Wilderness Society, was not consulted, nor was the intervenor the Gwich’in Tribal Council. The Na’cho N’y’ak Dun were consulted. They were considered to be the Aboriginal peoples with the greatest interest in the area. Their objection to the issuance of a permit was noted in the EARP Review screening report, in the following terms:

Nacho N ‘y’ ak Dun—chief & council reject application. E & LC to clarify situation with first nation. Access to mining claims cannot be denied.[3]

On August 31, 1993, the environmental screening was completed. On September 1, 1993, the engineer of DIAND’s land use office signed the environmental report and issued a land use permit to Westmin. The environmental screening report considered the effects of driving the bulldozer from the McQuesten Lake area to the claim site. It did not consider the activity in which the bulldozer would be engaged once it arrived there. The permit described the approved activity as “walk bulldozer from the end of McQuesten Lake via existing tote trials … to the Bonnet Plume River Valley for exploration on Quartz claims.” This permit was subsequently amended to allow for two bulldozers instead of one, and to amend the route to be taken so that the last seven to ten kilometres would be directly alongside the river. The bulldozers did not always in fact stick within existing trails. It became necessary, for safety and other reasons to move off the trails at times. This led to the felling of trees for that purpose, along an accumulated distance of approximately seven kilometres.

It is clear from the affidavit of Mr. Stammers that Westmin and Newmont were very conscious of environmental concerns when moving the Caterpillars to the claims site. They chose alternatives which would impact as little as possible on the environment, consistent with due regard for the safety of the operation. They took care to consult with the community of Mayo, the closest community to the site and with others who they thought would have an interest in their activity. When it was called to the attention of Westmin and Newmont that trees had been felled, an activity not contemplated by the permit, they ensured that the relevant area was cleaned up. There is no evidence that Westmin or Newmont acted in an irresponsible fashion.

At the time, the Bonnet Plume River had been nominated as a Canadian heritage river. Designation as such arises as a result of a non-statutory system established in the early 1980s, by the federal, provincial and territorial governments. The first step in identifying such rivers is to prepare a background study. This was completed for the Bonnet Plume River in 1992. The recommendation that the river be accepted as a candidate for heritage status was signed by the then Minister of DIAND. It stated that the river overwhelmingly met and exceeded the selection criteria for such nomination. The recommendation was accepted by the Canadian Heritage Rivers Board. What remains to be done, in order for the river to have full fledged heritage status, is the development of a management plan for the river. Such plan is in progress. In its 1992-1993 Annual Report, the Canadian Heritage Rivers Board described the Bonnet Plume as follows:

The remote Bonnet Plume is the epitome of a wilderness river. Over 350 Km. long, the Bonnet Plume River (and its 12,000 Km² watershed) was nominated based on its outstanding natural, cultural and recreational values. Renowned for its breath-taking mountain scenery, the Bonnet Plume provides important insights into the earth’s natural history, with many examples of glacial features …, rare plants and even duck-billed dinosaur bones. The river valley teems with wildlife—river travellers are likely to see caribou, grizzly bears and Dall’s sheep. The river is also recognized for its recreational values. Exciting whitewater rafting and canoeing, and hiking opportunities into the Wernecke Mountains, have made the Bonnet Plume known internationally as an outstanding wilderness trip. Finally, the Bonnet Plume has played an integral role in the lifestyle and cultural development of the local Gwich’in and Nacho N ’y’ ak Dun First Nations. It is truly a remarkable river.

The Territorial Lands Act

The Territorial Lands Act applies to Crown land in the Northwest Territories and in the Yukon Territory. Section 4 of that Act provides for the establishment of land management zones, when this is deemed “necessary for the protection of the ecological balance or physical characteristics of any area”. It is my understanding that virtually all of the territorial lands in the Northwest Territories and the Yukon Territory have been declared to be such. Section 5 of the Act provides that regulations may be made with respect to “the protection, control and use of the surface of [the] land” and for “the issue of permits for the use of the surface of land”. It is pursuant to this section that the Territorial Land Use Regulations were promulgated. Subsection 3(3) of the Territorial Lands Act, however, states that:

3. …

(3) Nothing in this Act shall be construed as limiting the operation of the Yukon Quartz Mining Act …

Westmin’s mineral claims were obtained pursuant to the Yukon Quartz Mining Act, R.S.C., 1985, c. Y-4, as amended. That Act is not of recent vintage. It dates from 1924, virtually unchanged.[4] It was based on an 1898 set of regulations.[5] The Act provides for what is called a free entry system: a prospector can enter on vacant Crown land, without seeking any particular permission, stake a claim, have that claim recorded and thereby acquire mineral rights in the claim area. Provisions in the Act require that a certain amount of work must be done on the claims each year or they will lapse. An alternative to doing such work is to pay $100 per claim to the mining recorder for the year.[6]

The rights which a claim holder obtains are described in subsection 76(1) of the Yukon Quartz Mining Act:

76. (1) The holder of a mineral claim, by entry … located on vacant territorial lands is entitled to

(a) all minerals found in the veins or lodes … together with the right to enter on and use and occupy the surface of the claim, or such portion thereof and to such extent as the Minister may consider necessary, for the efficient and miner-like operation of the mines and minerals contained in the claim, but for no other purpose; … [Underlining added.]

It is the inter-relationship of subsection 3(3) of the Territorial Lands Act and subsection 76(1) of the Yukon Quartz Mining Act which is at issue. The respondents and the intervenors, the Yukon Chamber of Mines and the Yukon Prospectors’ Association, take the position that subsection 3(3) of the Territorial Lands Act precludes the operation of the land use permit requirements, provided for in the Territorial Land Use Regulations, with respect to exploratory mining activities on mineral claims held under the Yukon Quartz Mining Act.

The applicant and the intervenor, the Gwich’in Tribal Council, argue that the provisions of the two statutes can operate together. They take the position that while section 3 of the Territorial Lands Act and the Territorial Land Use Regulations may not be applied to deny a claim holder the right to enter and use the surface of the land, for exploratory mining purposes, those regulations can be applied to regulate that use.

While I appreciate the attractiveness of this argument, especially in today’s climate of increased awareness of the importance of environmental concerns, I cannot accept it.

The relevant provision of the Territorial Lands Act, subsection 3(3), states that nothing in that Act “shall be construed as limiting the operation of the Yukon Quartz Mining Act” (underlining added). The relevant provision of the Yukon Quartz Mining Act, subsection 76(1), operates so as to confer on claim holders the right to “all minerals found … together with the right to … use … the surface of the claim … to such extent as the Minister [of Indian Affairs and Northern Development] may consider necessary, for the efficient and miner-like operation of the mines and minerals contained in the claim” (underlining added). A restriction on the right to use the surface of the claim site, other than one imposed by the Minister of Indian Affairs and Northern Development pursuant to subsection 76(1) would limit the operation of the Yukon Quartz Mining Act. The Territorial Land Use Regulations, which it is argued should apply, do not relate to the efficient and miner-like operation of the mining activities, nor are they imposed by the Minister of Indian Affairs and Northern Development. They are general land use regulations promulgated by the Governor General in Council. In my view, the explicit wording of subsection 76(1) precludes the operation of the Territorial Land Use Regulations to the mining activity in question.

I also agree with the argument that any interpretation of the two statutory provisions that would ascribe to the one scope to regulate but not prohibit the rights given under the other would create a situation fraught with difficulty. In order to regulate a use it is necessary to have the authority to prohibit the use in question. Otherwise the regulator has no sanction. Who would decide when the regulation of a use effectively amounted to a denial of the right to enter and exploit the claim? If a use regulation made exploitation of the mineral claim economically infeasible would this be a regulation or prohibition of use?

Notwithstanding that the Territorial Land Use Regulations do not operate, to govern the activity in question, because of subsection 76(1) of the Yukon Quartz Mining Act, paragraph 23(a) of the Territorial Lands Act leaves it open to the Minister to withdraw territorial lands from disposal if he wishes. The effect of such would be to prevent the recording of mineral claims in the area thus withdrawn (see: Halferdahl v. Whitehorse Mining District (Mining Recorder) (1990), 30 C.P.R. (3d) 183 (F.C.T.D.); revd [1992] 1 F.C. 813(C.A.)).

I note that not all mining activities are regulation free. If a decision were taken to undertake full scale mining, on the claims site, it is my understanding that the amount of water which would have to be used would require a permit pursuant to the Yukon Waters Act, S.C. 1992, c. 40. There is no exempting provision in that Act for mining activities on quartz claims. That requirement, in turn, would trigger the need for an EARP Review of the mining activity before it commenced.

Counsel for the intervenor, Gwich’in Tribal Council, made a very forceful argument based on the wording of the Territorial Lands Act and the Territorial Land Use Regulations promulgated thereunder to demonstrate that those provisions were intended to govern mining activities on mineral claims. As counsel for the respondents pointed out, however, the fact that the provisions are clearly intended to govern some mineral claim exploratory activity does not mean that they were intended to regulate mineral claims acquired under the Yukon Quartz Mining Act. The Territorial Lands Act relates to lands in both the Yukon and the Northwest Territories. In the Northwest Territories there is no exempting provision comparable to subsection 76(1) of the Yukon Quartz Mining Act. Thus, the permit requirements of the Territorial Land Use Regulations have a field of application, despite the fact that they do not operate in derogation of the Yukon Quartz Mining Act. In addition, not all mining activities in the Yukon are exempt from the land use permit requirements. Oil and gas exploitation is not exempt, nor would the exploitation, for example, of gravel pits be exempt. I do note, however, that the range of mining covered by the Yukon Quartz Mining Act is extensive and while references in these reasons are made primarily to that Act, the subsection 3(3) exemption also applies to the Yukon Placer Mining Act [R.S.C., 1985, c. Y-3].[7]

The Territorial Lands Act, enacted in 1950 [S.C. 1950, c. 22] as a successor to the Dominion Lands Act,[8] dealt only with the sale, lease or other disposition of territorial lands. Amendments made in 1970 provided for the creation of land management zones and the issuing of land use permits for such zones.[9] What is now subsection 3(3) of the Act was part of the Act when its scope of application was limited to the sale or lease of territorial lands. It is argued that this should be taken into account when determining the interrelationship of subsection 3(3) of the Territorial Lands Act and subsection 76(1) of the Yukon Quartz Mining Act. I understand that argument to be that subsection 3(3) should be interpreted as applying primarily to the disposition of lands (their sale or lease) and only secondarily to the land management zone provisions of the Act.

I am not persuaded that it is significant that what is now subsection 3(3) originated in the pre-1970 legislation. When the amendments of 1970 were enacted subsection 3(3) was not restricted in its application to the land disposition provisions of the Act. It was retained as limiting the application of the whole Act, including the new land use provisions. It is not possible to think that this scope of application was retained by inadvertence.

It is argued that the difference in the wording of subsections 3(3) and 3(4) [as enacted by R.S.C., 1985 (3rd Supp.), c. 7, s. 2] demonstrates that the Territorial Lands Act was intended to apply to mining activities under the Yukon Quartz Mining Act. Unlike subsection 3(3), which states that the former shall not be construed to limit the operation of the latter, subsection 3(4) states that certain sections of the latter Act shall not apply as they relate to certain specified areas. I have not been persuaded that the difference in language is significant. In the case of subsection 3(4) very specific provisions are in issue and the areas from which they are exempted are precisely identified. In the case of subsection 3(3) the interaction of the whole of both statutes is in issue and therefore a different wording is appropriate. This difference in wording does not lessen the effect of the exemption created by subsection 3(3).

It was noted that subsection 76(1) of the Yukon Quartz Mining Act accords to a claim holder the right to enter on the lands in question, yet DIAND still required that Westmin and Newmont obtain a land use permit to take the bulldozers to the claims site. It is argued that if a permit can be required before a claim holder can exercise the right of entry, similarly, a permit can be required before mining activities can be undertaken on the site. I am not persuaded that the analogy can be sustained. The right of entry given to a claim holder is the right to enter on the land covered by the claims. It is not a right to enter the land of a neighbour for the purpose of reaching the claim site. If, in order to gain entry to the land in which mineral claims are held, it is necessary to travel over land owned by another, then, such permission as may be required from the land owner, in this case the Crown, must be obtained. It is not illogical to require that a land use permit be obtained to walk the bulldozers into the site while stating that no permit need be obtained to engage in exploratory mining activities on the site.

I was referred to the decision in R. in right of the Province of British Columbia v. Tener et al., [1985] 1 S.C.R. 533. In that case, the respondents held mineral claims in lands which subsequently became encompassed within a provincial park. Under the relevant provincial legislation[10] the owners of mineral claims had the right to all minerals in the claims and the right to the use and possession of the surface for the purpose of extracting the minerals. An Act was subsequently enacted, the Park Act,[11] that required that a permit be obtained before a natural resource in the park could be exploited. There was no provision in the Park Act which limited its application vis-à-vis the respondents’ mineral claims. It was held that expropriation had occurred and the provincial Crown was ordered to pay compensation. Because of the lack of an exemption provision in the Park Act, comparable to subsection 3(3) in the Territorial Lands Act, I do not find the Tener decision very helpful in assessing the interaction of subsections 3(3) and 76(1). I do think it is helpful, however, in assessing one of the arguments put forward by counsel for the Yukon Chamber of Mines and the Yukon Prospectors’ Association.

If I understand counsel’s argument, referred to in the preceding paragraph, correctly, it is that the Territorial Lands Act cannot apply to mineral claim rights because these are not territorial lands. Section 50 of the Yukon Quartz Mining Act states that a mining claim is “a chattel interest, equivalent to a lease of minerals in or under the land for one year”. This has been interpreted in several cases as giving the claim holder an interest in land. See Beakhurst et al. v. Williams, Mining Recorder for Nahanni Mining District and Cadillac Explorations Ltd. , [1971] 1 W.W.R. 230 (N.W.T. Terr. Ct.) and Uranerz Exploration & Mining Ltd. v. Blackhawk Diamond Drilling Inc. (1989), 63 D.L.R. (4th) 350 (Sask. Q.B.). A description can also be found in Blue, “Exploration Dispositions, Priority and Registration”, Mining Law in Canada (Continuing Legal Education, Law Society of Saskatchewan, 1984), page 5, at pages 12-14. The interest in land, thus acquired by the holder of a mineral claim, must be married with the right to enter on the land in question and use the surface as required, to extract the minerals. As has been noted, both these rights are given by the Yukon Quartz Mining Act. Thus, what the mineral claim holder has, as described in the Tener case, supra, at pages 540-542, is a “profit à prendre”. It is an interest in land.

If I understand counsel’s argument correctly it is that because the mineral claim holder acquires an interest in land, the Territorial Lands Act cannot apply to that interest because the interest is no longer vested in the Crown. “Territorial lands” are defined in section 2 of the Act as “lands … that are vested in the Crown or of which the Government of Canada has power to dispose” and “land” is defined in section 2 as including “mines, minerals, easements, servitudes and all other interests in real property”.

I am not aware of any jurisprudence which has interpreted the meaning of “lands vested in the Crown” in the Territorial Lands Act but the fact than an interest in the land, for example a lease, may be vested in another does not mean that the land itself is vested in another, as that term is normally used. Land is vested in the holder of the freehold and in this case since the Crown has never given a freehold grant (a Crown grant), the land is still vested in the Crown. In addition, even if that interpretation were incorrect, the Crown retains not only the freehold in the property in question but also ownership of the surface rights. Although a claim holder has the right to enter thereon, it is the ownership of the surface rights that is relevant for the purposes of the land use provisions of the Territorial Lands Act. Counsel’s argument, it seems to me equates the term “land” with any interest therein, however small (e.g., even an easement). The definition of land, however, does not say that land is or equates to an easement. I have not been persuaded that the lands in which the claims are held are not territorial lands.

In conclusion, I think the interpretation of the scope of the exemption provision found in subsection 3(3) of the Territorial Lands Act, which was accepted by the DIAND engineer, in not requiring Westmin to obtain a land use permit for the exploratory mining activities on the claim site, was correct. I do not need to consider the jurisprudence concerning the scope of deference which is to be paid to a tribunal’s interpretation of the law, in judicial review applications: Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.

EARP Review

The EARP Review that was done, with respect to the walking of the bulldozers into the claim site, is challenged on two grounds: (1) the review was not adequate because it assessed the impact of walking the bulldozer(s) into the site without also assessing the impact of the activity in which the bulldozer(s) were to engage once they arrived; (2) it was not adequate because it ignored the status of the Bonnet Plume River as a candidate Canadian heritage river.

I note that this issue is to some extent now moot since the bulldozers have completed the work they were taken to the site to do. They have been removed from the site and I am informed they will not be returned, even though the permit which was issued does not expire until January 31, 1996.

I will deal first with the argument that the DIAND engineer erred in law by not considering the end use to which the bulldozer(s) would be put. The Supreme Court has stated that the EARP Guidelines Order is to be interpreted broadly in keeping with its purposes.[12] In this context, it is argued that the jurisprudence has established that, in undertaking an EARP Review: (1) directly related impacts as well as those flowing from the activity for which a permit is required must be considered; (2) cumulative effects must be considered.

With respect to the first argument, the directly related impacts argument, the decisions in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 (the Grand Council of Crees case); Murphyores Incorporated Pty Ltd. v. The Commonwealth (1976), 136 C.L.R. 1 (Aust. H.C.) and in Village of Kannata Valley et al. v. Kannata Highlands Ltd. (1983), 13 C.E.L.R. 1 (Sask. Q.B.) are relied upon.

In the Grand Council of Crees case, at pages 191-192, the Supreme Court held that an EARP Review, which was required before a permit could be issued to export electricity, had to consider the environmental impacts arising not merely from the export of the electricity itself but also from any expanded facilities needed to produce that electricity. Similarly in the Murphyores case a minister who had authority to grant a permit before certain ore concentrates could be exported was held to be entitled to take into account the effects on the environment of processing those concentrates. In the Village of Kannata case, an injunction was granted preventing the construction of an access road to a proposed subdivision. Approval of the subdivision development had not at the time been received. The relevant provincial statute, The Planning and Development Act[13] did not require approval of the construction of a road but it did require approval of the development of a subdivision.

I am not persuaded that this jurisprudence is helpful. In the Grand Council of Crees case the Court found that the assessment of the impacts of the expanded production facilities had to be included because such were required in order to fulfil the export contract. This can equally be said to be the case in the Murphyores case although that case, of course, related to the Australian Environment Protection (Impact of Proposals) Act 1974, No. 164 and the reasoning was one in which the Minister had decided to take the environmental impacts into account and the plaintiffs were trying to prevent him exercising his discretion to do so. In the Village of Kannata case an interim injunction was granted to preserve the status quo. Whether or not the construction of the road was a proposal which required assessment under the Saskatchewan Environmental Assessment Act[14] was in issue. The Judge noted that there was a serious issued to be tried, that is, whether the construction of the road was a “development” which required assessment. The road was an integral part of the subdivision. It was to be the main road of the subdivision and the subdivision was clearly a development which required assessment. If the subdivision development did not receive approval there would be no point in building the road.

There is not the same necessary connection between the two activities in the present case as existed in the Grand Council of Crees and the Murphyores cases. In those cases, the activity for which a permit was required necessarily required the related activity to be undertaken in order for the activity for which a permit was required to proceed. In the present case, while the bulldozers were being taken to the site to be used to facilitate exploratory activities, they did not have to be so used. They could have been parked on the site (although this was not what was intended) and used only after a decision was taken to proceed with a full mining operation. Conversely, presumably, had a permit not issued to walk the bulldozers into the site, alternatives existed e.g., flying the bulldozers in by helicopters, in sections, and assembling them on the site.

In so far as the Village of Kannata case is concerned, as already noted, the decision is distinguishable because it is an interim injunction decision. More importantly, however, the main activity to which the road building was ancillary (the subdivision development), clearly, required environmental assessment and approval. This differs from the instant case where it is sought to attach a requirement of environmental assessment to the main activity because such are required for an ancillary aspect thereof. I am not persuaded that the directly related activity argument assists the applicant in this case.

I turn, then, to the second argument, the cumulative effects argument. It is argued that the exploratory mining activity should have been assessed as part of the EARP Review, respecting the taking of the bulldozers to the site, because when such reviews are done cumulative effects must be considered. Reference was made to the decisions in Thomas v. Peterson, 753 F.2d 754 (9th Cir., 1985), at page 759 and Sunshine Village Corp. v. Canada (Minister of Canadian Heritage), [1995] F.C.J. No. 1180 (T.D.) (QL) as well as to DIAND’s own Environmental Screening Manual.[15] As I read the cases, the cumulative effects doctrine is designed to ensure that the full impact of an activity is not minimized by dividing a proposal into several different applications and seeking to have the environmental impacts of each assessed without regard to the others. For example, in the Thomas v. Peterson case the construction of a logging road was under review. It was held that the prospective logging activity itself must also be assessed as part of the review. But it is clear from page 760 of that decision that an assessment of the logging activity alone would also have been required. The decision indicates that an assessment of the environmental impact of the timber sales was required, if not as a part of the logging road review, then, independently. Therefore, the Court held that the environmental impacts of the logging were to be assessed as part of the assessment of the impacts of constructing the road. Another decision of similar import, cited by counsel, is Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir., 1973), at page 14.

In the Sunshine Village case, again, it seems clear that what was being addressed was the need to evaluate the whole development rather than parts thereof on a piecemeal basis. Aspects of a development which had previously been approved but never built and that now appeared as part of a new and expanded plan for development were held to be properly reviewable in the context of the new plan. The Court held that the 1992 plan modifications should be examined “in light of the cumulative effects of all development in the Sunshine Village Ski area” including the unbuilt portions of the 1978 plan. The situation in that case is not similar to the present. The present case does not involve an attempt to circumvent an effective review process by having the project evaluated piecemeal. It is simply a situation where an ancillary aspect of a developmental activity is subject to review, because a government issued permit is required, while the main activity in question is not.

I turn then to the argument that the EARP Review is faulty because the status of the Bonnet Plume River was not taken into consideration. It is argued that this was an inconsequential error because, while such might have been the case, all relevant factors that would arise from such were considered.

The screening report which was prepared pursuant to the EARP Review described the potential environmental effects in five lines. There was no discussion of the significance of those effects. Under the headings “Area Status” and “Land Status” nothing was recorded. The report recommended that the proposal (taking of the bulldozer(s) to the site) proceed. It is clear that the screening report did not consider the fact that the Bonnet Plume had been nominated by the Minister of DIAND and accepted as a candidate heritage river only eight months earlier. It was a relevant factor which should have been considered. In addition, the fact that the Canadian Parks and Wilderness Society was not notified and asked for comments and that the views of the Gwich’in Tribal Council were not sought are also relevant factors. The Gwich’in have a significant interest in the area in question. They will be affected by the use of lands in the area of the claims site because they are the downstream users of the land and waters in question.

That having been said, however, I recognize the force of the respondents’ argument that an order declaring that the permit (to take the bulldozers to the site) is invalid would not be meaningful. The bulldozers have been taken into the claims site and out again. The work they were to do has been done. With that in mind, I accept that the orders sought would not serve any useful purpose.

For the reasons given, I have been persuaded that the applications must be dismissed.

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