Roy Rupert, Robert, Salo, Tremblay, Mining Commissioner, Ontario, Nicolet Township, Canada

File No. MA 030-10 & MA 038-10

M. Orr
Deputy Mining and Lands Commissioner

L. Kamerman
Mining and Lands Commissioner

Thursday, the 17th day of December, 2015.

THE MINING ACT

IN THE MATTER OF

Mining Claims SSM-1234843, staked by Mr. Darrel Peever and 3018248 staked by Mr. Derek Reed, both situate in the Township of Nicolet, in the Sault Ste. Marie Mining Division, and both recorded in the names of Mr. Jacques Robert, Mr. Randall W. Salo, Mr. Michael A. Tremblay and Mr. Delio J-J Tortosa, each as to a 25% interest, (hereinafter referred to as the “Peever Mining Claim 1234843” and the “Reed Mining Claim 3018248”); (Amended December 17, 2015)

AND IN THE MATTER OF

An Order of the Provincial Mining Recorder, dated the 13th day of August, 2010, ordering adjustments to boundaries and posts related to the Peever and Reed Mining Claims; (Amended December 17, 2015)

AND IN THE MATTER OF

Ontario Regulation 196/06, as amended, Claims Staking;

B E T W E E N:

ROY J. RUPERT
Appellant

- and -

JACQUES ROBERT, RANDALL W. SALO,
MICHAEL A. TREMBLAY and DELIO J-J TORTOSA
Respondents

AND IN THE MATTER OF

An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 12th day of August, 2010, pursuant to subsection 112(1) of the Mining Act for the recording of Mining Claim SSM-1234843 on the condition that boundaries be moved to eliminate overlap with Mining Claim SSM-3018248 OR, for a declaration that Mining Claim SSM-3018248 be declared invalid.

AND IN THE MATTER OF

An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 20th day of October, 2010, pursuant to subsection 112(1) of the Mining Act accepting a Certificate of Compliance purportedly signed by Mr. Darrell Peever, attesting to the moving of boundaries on Mining Claim SSM-1234843, said certificate having been alleged by the Appellant as having been a forgery. (Amended December 17, 2015)

AND IN THE MATTER OF

An allegation that Peever’s letter to the Provincial Mining Recorder acknowledging compliance with the Order of the 12th day of August, 2010, is not based on direct knowledge, Peever not being present for the boundary/post adjustments and that Peever’s signature is forged; (Amended December 17, 2015)

O R D E R

WHEREAS these appeals were filed with this tribunal on the 10th day of September, 2010;

AND WHEREAS these appeals were heard in the courtroom of this tribunal on the 20th day of July, 2015;

1.     IT IS ORDERED that the appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 12th day of August, 2010, for the recording of Mining Claim SSM-1234843 on the condition that boundaries be moved to eliminate overlap with Mining Claim SSM-3018248 OR, for a declaration that Mining Claim SSM-3018248 be declared invalid, be and is hereby granted.

2.     IT IS FURTHER ORDERED that Mining Claims SSM-1234843 and SSM-3018248, be and are hereby cancelled.

3.     IT IS FURTHER ORDERED that no costs shall be payable by either party to these appeals.

THIS TRIBUNAL FURTHER ADVISES that, pursuant to subsection 129(4) of the Mining Act, R.S.O. 1990, c. M. 14, as amended, a copy of this Order shall be forwarded by this tribunal to the Provincial Mining Recorder WHO IS HEREBY DIRECTED to amend the records in the Provincial Recording Office as necessary and in accordance with the aforementioned subsection 129(4).

Reasons for this Order are attached.

DATED this 17th day of December, 2015.

Original signed by M. Orr

M. Orr
DEPUTY MINING AND LANDS COMMISSIONER

Original signed by L. Kamerman

L. Kamerman
MINING AND LANDS COMMISSIONER

 

 

File No. MA 030-10 & MA 038-10

M. Orr
Deputy Mining and Lands Commissioner

L. Kamerman
Mining and Lands Commissioner

Thursday, the 17th day of December, 2015.

THE MINING ACT

IN THE MATTER OF

Mining Claims SSM-1234843, staked by Mr. Darrel Peever and 3018248 staked by Mr. Derek Reed, both situate in the Township of Nicolet, in the Sault Ste. Marie Mining Division, and both recorded in the names of Mr. Jacques Robert, Mr. Randall W. Salo, Mr. Michael A. Tremblay and Mr. Delio J-J Tortosa, each as to a 25% interest, (hereinafter referred to as the “Peever Mining Claim 1234843” and the “Reed Mining Claim 3018248”); (Amended December 17, 2015)

AND IN THE MATTER OF

An Order of the Provincial Mining Recorder, dated the 13th day of August, 2010, ordering adjustments to boundaries and posts related to the Peever and Reed Mining Claims; (Amended December 17, 2015)

AND IN THE MATTER OF

Ontario Regulation 196/06, as amended, Claims Staking;

B E T W E E N:

ROY J. RUPERT
Appellant

- and -

JACQUES ROBERT, RANDALL W. SALO,
MICHAEL A. TREMBLAY and DELIO J-J TORTOSA
Respondents

AND IN THE MATTER OF

An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 12th day of August, 2010, pursuant to subsection 112(1) of the Mining Act for the recording of Mining Claim SSM-1234843 on the condition that boundaries be moved to eliminate overlap with Mining Claim SSM-3018248 OR, for a declaration that Mining Claim SSM-3018248 be declared invalid.

AND IN THE MATTER OF

An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 20th day of October, 2010, pursuant to subsection 112(1) of the Mining Act accepting a Certificate of Compliance purportedly signed by Mr. Darrell Peever, attesting to the moving of boundaries on Mining Claim SSM-1234843, said certificate having been alleged by the Appellant as having been a forgery. (Amended December 17, 2015)

AND IN THE MATTER OF

An allegation that Peever’s letter to the Provincial Mining Recorder acknowledging compliance with the Order of the 12th day of August, 2010, is not based on direct knowledge, Peever not being present for the boundary/post adjustments and that Peever’s signature is forged; (Amended December 17, 2015)

R E A S O N S

Appearances

Mr. Roy Rupert ­ Appellant
Mr. Randall Salo ­ Respondent, Agent for Respondents

Introduction

[1]    The Acting Provincial Mining Recorder (the “PMR”) Mining Lands Branch, Ministry of Northern Development and Mines, conducted a hearing into various disputes after certain lands came open for staking on June 1, 2008, in the unsubdivided Township of Nicolet.  The lands had become forfeit to the Crown and were also known as the “Tribag Mine” site.  Reliance for some details respecting the lands is placed on the PMR’s decision which was filed by the Appellant Rupert.  The staking was described therein as “a competitive staking race” which started at 9 a.m.  Approximately ten individual staking licensees were involved in the exercise.  There were three competing groups or teams but for the purposes of this hearing, the focus is on two of the groups – namely the Randall Salo group and the Roy Rupert group (also known as the “RRS Syndicate”).

[2]    The lands that came open were surrounded by recorded claims or patents and the space available for staking was irregularly shaped.  Despite scouring documents and the evidence presented as well as the Order under appeal, the dimensions of the lands coming open could not be located.   Mine Lake figures prominently within the open lands.  Its shape is roughly that of an oblong (picture a mitten), and from the mapping provided by the parties is perhaps about 500 metres long and about 200 ± metres wide.

[3]    The actual staking of claims by the groups happened within a matter of minutes. In the case of the two claims under dispute and appeal here (SSM-1234843 and SSM-3018248, respectively), both were staked by Messrs. Peever and Reed practically simultaneously – there being a four minute difference in finishing times.  Each disputed claim, were one to look at it on its own without the other one present (so to speak), measures 16 hectares. However, Mining Claim SSM-3018248, which was completed before Mining Claim SSM-1234843, in effect, partially lies underneath Mining Claim SSM-1234843 as this latter mining claim has a later finishing time.  They are overlapping claims and the boundaries of one were crossed in the staking of the other.  The result is that both share an area consisting of land and most of the waters of Mine Lake.  By contrast, the claims staked by the RRS Syndicate did not overlap and their shapes are not square.  The shapes of the claims of the two parties are the result of two different staking approaches.

[4]    The PMR decided to dismiss the dispute against Mining Claim SSM-3018248 on August 12, 2010 and to allow Mining Claim SSM-1234843 to be recorded “following compliance with a separate Recorder’s order to move boundaries”.  That subsequent order (dated August 13, 2010) was also appealed by Mr. Rupert on September 1, 2010, on the grounds that it had not been carried out in accordance with the Act and regulations.  This subsequent order (which became tribunal file MA 037-10) affected three of the claims that had been staked for his group.  They are claim numbers 4243482, 4243483 and 4243484.  In his decision of August 12, 2010, the PMR decided that these three claims could be recorded following compliance with the subsequent order to move boundaries.  Mr. Rupert appealed that order to move boundaries and file MA 037-10 was opened.  This file was not before the tribunal in this hearing.  The August 12, 2010, decision of the PMR to accept the three claims for recording pending boundary adjustments was not disputed.

[5]     In allowing Mining Claim SSM-1234843 to be recorded, the PMR was facing an unusual set of circumstances.  Mr. Rupert’s dispute was filed before the claim could be recorded.  The PMR noted in his decision that the claim staked by Peever was “conditionally accepted for recording” pending a decision as to whether the dispute filed against it was legally valid.  If it was valid, then the PMR dismissed it.  The PMR noted that he chose to rely on s. 46 of the Act to exercise his discretion to accept the claim and to proceed with hearing disputes.  The tribunal has noted that the parties have now appeared before two decision-making bodies under the Act.  No arguments regarding jurisdiction were raised by the parties in this appeal.  The tribunal is of the view that while it appears at this point that nothing turns on the fact that the claim in this case was disputed before being recorded the issue raised by the PMR should be addressed.[1]

Issues

  1. Are two claims that have been staked deliberately to overlap valid?
  2. Are 16 ha units an absolute requirement in all circumstances?
  3. Does substantial compliance apply in this matter?
  4. Is it necessary to inscribe a finish time on a number one Witness Post in a clause 10(2)(3) situation (involving lands open for staking for less than twenty-four hours)?
  5. Is it required for the licensee who did the staking to be present to oversee the PMR’s order adjusting boundaries?

Submissions

[6]    While Mr. Rupert presented his case first, being the appellant, it is helpful for purposes of this decision to present Mr. Salo’s case describing how and why the two claims at issue were staked as they were.  Mr. Salo’s testimony and the documentation he filed for the hearing are relied on for this purpose.

[7]    The two mining claims under appeal before the tribunal were staked for the Salo group; one was staked by Reed (3018248) (“the Reed claim”), and the other by Peever (1234843) (“the Peever claim”).  Each claim overlaps the other.  In other words, both claims share a portion of common ground/water.  Mr. Salo describes the rationale for this configuration by saying in his written materials:  “…both claims…were designed as compliant single unit claims so as to not gain an improper advantage, which could be afforded by an undersized claim configuration.  The Robert group believes that it has complied with the Mining Act in staking out the Peever claim 1234843 in an overlapping situation with the Reed claim 3018248.”  [MA 030-10 ex. 4a, p.10]

Salo Submissions

[8]    To better understand the issues arising out of the staking of the two claims as well as the dispute submitted by Mr. Rupert, it is useful to know that Mr. Salo pointed out (both in his materials and in his oral testimony at this hearing) that his interpretation of the staking regulations at the time (Ontario Regulation 7/96), meant that his team would be required by law to stake 16 hectare size claims – there could be no deviation from that – even to the point that Mr. Peever would not be able to stop at Mr. Reed’s boundary but would have to run over the Reed boundary to get his 16 hectares.  Mr. Reed took the same approach with his staking efforts in order to obtain 16 hectares.  Mr. Salo indicated that they identified a “target” location they wanted; staked the two claims and ended up with the two claims overlapping one another.  Peever and Reed both started at 9 a.m., but Reed finished at 9:08 a.m. and Peever finished at 9:12 a.m.

[9]     As Mr. Salo stated in his materials [MA 038-10, Ex. 4, Summary, page 9]:

“The Robert group attests with the evidence contained herein that the staking of the Derek Reed claim 3018248 was in full compliance with O. Reg. 7/96, Section 2(1) in that Derek Reed indeed staked 16 hectare area claim, more or less.
The Robert group attests … that the Derek Reed claim 3018248 was staked in full compliance with the Mining Act.  In complying with O. Reg. 7/96, Section 2, the overlapping configuration with the Peever claim 1234843 was determined to be inevitable.”

[10]     Mr. Salo relied on decisions of the tribunal in Moneta [2] and Racicot [3] to justify the method used by the team.  He also interpreted the Act and staking regulations in such a way that they supported his tendency to leave gaps between the claims he had staked and lands not open for staking.  For example, he referred to the regulation’s requirement that an astronomically straight bearing be taken – thereby creating straight lines that might not tie into lines in the field or on the Ministry’s survey maps.  Mr. Salo understood that the staking method they used left a gap between the northern boundary of the Peever claim and the southern boundary of Daigle Mining Claim SSM-4219727.  The tribunal’s previous decisions (mentioned above) were used to justify the crossing of staking boundaries by two stakers in the field.

The Peever Claim (1234843)

[11]     The Peever claim was staked by Darrell Peever starting at 9:00 a.m.  His number one corner post did not tie on to recorded Mining Claim SSM-4201403 and does lie to the east of Mine Lake.  Mr. Peever said he could not find a tie.  His number one post was also located south of the southern boundary for Mining Claim SSM-4219727.  The result was that a gap (gore/fraction) was created along the northern boundary of the Peever claim (wider at the east side and going to a point on the west side).  The number two post location has a time of 9:04 a.m. and also lies to the east of Mine Lake.  The number three post has a time of 9:07 a.m.  Witness post number 4 is located on the eastern shore of Mine Lake and has a time of 9:09 a.m.   The finish time is noted as 9:12 a.m. on the number one post.  The post therefore has both a start and a finish time.

[12]    Mr. Salo relied on a diagram in his materials to pictorialize the Peever Claim [MA038-10, Ex. 4, Figure 1].  The west boundary for the Peever claim does not cross the point of land that sticks out on the west shore of Mine Lake.  (Mr. Rupert asserts that it does.  The PMR decision noted that Mr. Peever failed to blaze the line where it crossed the point of land on the west side of the Lake and to use the land to position a witness post for the true number four corner in the Lake so it seems he agreed with Mr. Rupert on this point.) The PMR also used the substantial compliance standard to “forgive” the defects he found in Mr. Peever’s staking.  The Peever claim overlaps the Caron claim (staked for Rupert).  The main difference between the two is that the Caron claim does cross the point of land that juts out eastward from the western shore of Mine Lake.

[13]    Both sides in this matter argued at length about the accuracy of government mapping (Ministry claim maps), and the accuracy of their own maps and calculations.  Both sides also submitted a number of maps and Mr. Rupert submitted the notes of his witness Mr. Vallillee which were for the most part accepted and even relied on by the Salo group.  Mr. Vallillee’s notes were extensive and laden with detail – resembling claim inspectors’ notes of the past.

[14]    Mr. Peever witnessed his number four post from a point north of his number three post into the lake.  His true number four post location was in the lake and Mr. Salo argued that this conformed with the presumed boundary of the recorded claim to the north (4219727).  Mr. Salo took issue with the actual southern boundary of 4219721 as depicted on the government claim map saying that it may “differ substantially”.

[15]    Using calculations provided by Mr. Vallillee (for Rupert), Mr. Salo confirmed that the distance from Mr. Peever’s number one post to the farthest east point of land on the lake’s western boundary was 392.7 metres thereby conforming to the 400 metre requirement.

The Reed Mining Claim (3018248)

[16]    According to the form used to file the claim, the true number one corner was located in the waters of Mine Lake.  A number one witness post was erected approximately twenty-five meters south of the true corner and it bears the starting time of 9:00 a.m.  It does not bear a finishing time.

[17]    The number two post bears the time 9:02 a.m.  The number three post bears the time 9:05 a.m.  The number four post bears the time 9:07 a.m.

[18]    Another witness post for true corner number one was placed approximately 185 metres east of the number four post on the eastern edge of Mine Lake.  It was also indicated on the recording application that this point on the eastern edge of the Lake was approximately 215 metres west of the true number one corner.  This second witness post bears a finish time of 9:08 a.m.

[19]    This meant that there was no single number one post or witness post for the true number one location bearing both a start and a finish time.  The PMR decision accepted this information and Mr. Salo submitted that the regulation did not require both a start and finish time on any witness posts used to identify a true number one corner not even in a staking rush situation as the Regulation is silent.

Rupert Submissions Disputing the Peever Claim

1.    The claim was not completed in compliance with the regulations as the intention was to achieve an early completion time.  The west boundary and northeast angle were not blazed and “defined” by a number four post.
2.    The sketch accompanying the application to record was misleading in that it appeared that the number four post was on land under water.
3.    Both claim 1234843 and 3018248 were improperly staked as mutually overlapping claims by cooperating stakers.  While they both met the required size of 16 hectares, the manner in which they were staked was not in compliance with the regulation.  In carrying out the mining recorder’s order to move the posts for 1234843 it became 9.62 hectares in size – meaning it became undersized and not in compliance.  Claims are to be staked in 16 hectare units or greater if at all possible.  Mr. Rupert also took issue with the manner in which the mining recorder’s order was carried out.  In fact, Mr. Peever never actually carried out the moving of the posts but left it to someone else and dealt with the matter from a distance.  Mr. Peever was involved by telephone only.  This was revealed in fact in Mr. Rupert’s cross-examination of Mr. Peever.  Mr. Rupert claimed that the signature on the certificate of compliance was a forgery.
4.    The staking method carried out by the Salo team produced one or more claims that were less than 16 hectares in size.

Rupert Submissions Disputing the Reed Claim

[20]     In addition to dispute number 3 above for the Peever claim, Mr. Rupert took issue with the deliberate staking of two overlapping claims by cooperating stakers.  One or both of them could not be properly recorded as staked in compliance with the staking regulations that a claim be 16 hectares in size.  Also, the fact that the Peever claim did not tie on to existing claims of record created gaps or fractions that could and should have been avoided.

[21]     Mr. Rupert submitted that Mining Claim SSM-3018248 was never actually completed in accordance with the staking regulations as the first number one witness post (bearing the 9 a.m. starting time) did not bear a completion time on it.  Mr. Reed should have gone to the starting number one witness post and inscribed the finish time on it.  The regulations required the start and finish time to be on one post in a competitive staking situation.

[22]    Mr. Rupert alleged that in both instances, the intention was to gain a time advantage for both claims.

Legislation

[23]    The Mining Act, R.S.O. 1990, c. M 14, as amended, is applicable in this matter and it states in s. 38 that “[a] mining claim shall be staked in such size, form and manner as is prescribed….”

[24]    Subsection 44 (1.1) says that applications to record a mining claim “shall be in the prescribed form and be accompanied by … a sketch or plan showing the prescribed information”.  Subsection 44 (2) says that priority of staking “shall prevail where two or more licensees make application to record the staking of all or part of the same lands”.  Where one prevails, the other one is cancelled ss. 44(3).  Despite ss. 44(3) under ss. 44(4), “if the other application or applications to record a mining claim cover any land that is not part of the mining claim that is entitled to priority under ss. (2), the recorder may record a mining claim with respect to that part of the land and shall amend the application or applications with respect to the land covered by the previously completed claims”.

[25]     An order made pursuant to ss. 110(6) ostensibly permits minor staking deficiencies to be corrected where the staking itself has been found to be in substantial compliance or deemed substantial compliance.  

[26]    The applicable regulation (Ontario Regulation 7/96) prescribes staking requirements.

[27]     In unsurveyed territory (where the disputed claims are located), the regulation requires that a mining claim consist of one or more 16 hectare units; that when it is staked it has a “contiguous area” of not less than 16 hectares and not more than 256 hectares; that it has boundaries running only north and south and east and west astronomically, and that it has the form of a rectangle. [Section 2]  In addition, a mining claim may have a boundary that is coterminous with the boundary of an area not open for staking as long as all the other boundaries conform as closely as possible to the requirements of section 2.

[28]    The size must “as nearly as practicable” be a multiple of 16 hectares except if it has an irregular area as described in the section 3 (adjacent to land or land under water that is not open for staking).  For purposes of this decision, it is also important to know that sections 2 and 3 apply to the staking of mining claims in unsurveyed territory [section 4].

[29]     “Contiguous” is defined in the regulations as meaning “an unbroken chain of spatially linked unpatented, patented or leased mining claims or other mining land”.

[30]    Section 8 of the regulation is entitled “Staking: General Rules”.  A mining claim “must” be staked as a “continuous action”; must be staked by erecting a corner post at each of four corners amongst other requirements.

[31]    Section 9 requires that the staking be done under the direction of a recording licensee and so on.

[32]    Subsection 10(2) sets out the requirements for staking of a mining claim in areas that have been open for staking for less than 24 hours.  The staking must start at the northeast corner and proceed in a clockwise direction.  Only the recording licensee may erect, inscribe or affix a tag to a corner post, line post or witness post.  Pursuant to cl. 10(2)(3), the date and time of both the start and completion of the staking must be inscribed on the number one corner post by the recording licensee.

[33]     Section 12 sets out the requirements to be followed when erecting witness posts.  Section 12 indicates that one or two witness posts may be used where it is impracticable to erect a corner post.  It also indicates that the same inscription and tag as are required for a corner post at a true corner under ss. 15(1) and (3) can be used on the witness post.  Neither ss. 15(1) or (3) say anything about a start and finish time being required.  Section 12 also sets out its own requirements for inscriptions and so on, but makes no mention of needing a start and finish time.  Subsection 10(2) contains the reference to a staking exercise needing a start and finish time on the number one corner post.

[34]    Section 20 says that where a licensee has attempted in good faith to comply with the Act and the regulation then a claim will not be invalidated by the inclusion in the area of the claim an area more or less than the applicable size, amongst other things.

Analysis

Facts Found by the Tribunal

[35]The lands in question were open for staking for less than 24 hours and they were in unsurveyed territory.  Two teams carried out their staking activities using two different approaches – each asserting that their approach complied with the legislation.  Mr. Salo’s approach was to interpret the regulations literally.   He strictly applied  straight astronomical bearings going exactly north/south and east/west – a methodology that in itself, left no room for tying on to existing mining fabric.  Gaps between his claims and other recorded and/or patented claims were created.  In his words his team identified a “target” and used his staking approach to secure the target.  From his testimony, the target lay within the boundaries of the two disputed claims.  His intention was to shoot straight boundary lines and if that created gaps then that was the fault of the mapping done by the ministry.  He was critical of the mapping provided by the Ministry of Northern Development and Mines. His methods also meant that tying on to existing claims was not as important as getting his lines straight.

[36]    Mr. Salo interpreted two decisions of this tribunal, namely the decision in Moneta and the decision in Racicot to come to the conclusion that a team could stake overlapping mining claims.  Stakers could cross boundaries being created by other stakers at the same time and presumably by that action, they could stake overlapping claims as a result.

[37]    The Reed claim was staked in such a way that two different witness posts were used to identify the true corner for the number one post (which was under water).  The first number one witness post bore a start time but did bear a finish time (which was recorded on the second number one witness post).  This was all part and parcel of Mr. Salo’s approach to staking in a competitive situation.  His approach was designed to stake a target with maximum speed.  The tribunal will deal with the manner of staking and give reasons as to why it was found wanting.

[38]    The PMR’s order to adjust boundaries was not carried out by the licensee Mr. Peever as he was located off site.  The adjustments were carried out by someone else who confirmed with Mr. Peever by telephone that the adjustments had been carried out.  Not being present, Mr. Peever had no direct knowledge of the work done to comply with the PMR’s order.

[39]    In comparison to the Salo team staking methods, Mr. Rupert carefully tied on to existing claims with the result of ending up with a different pattern of mining claims – a pattern that reflected the fact that he was staking to meet boundaries of existing recorded claims.  In addition his method reflects his attempts to meet the requirements of the legislation including that of staking claims so that they formed an unbroken chain or one massive block of contiguous claims.  His claims did not overlap.

[40]    Supporting Mr. Rupert’s careful staking technique were a series of detailed and extensive notes taken by his consultant Mr. Vallillee whose forthrightness and credibility were not shaken on the stand despite the passage of time in this matter.

Application of the Law to the Facts

[41]    It is clear to the tribunal that a literal interpretation of the regulations can produce a myopic result that fails to appreciate the intent and purpose of the legislation as a whole.  In this case, sticking with exact astronomical bearings forgoes any reference to the phrase “as nearly as practicable” which is used in the regulations to forgive those claim lines that might have to tie on to an existing recorded claim fabric or deal with the reality of a geological barrier.   Subsection 2(5) in conjunction with  section 3 of the Regulation work together to address the fact that the reality of a staking situation might not produce an exactly perfect rectangle.  They should not be interpreted to support a method that simply plots a “target” and then works to plot out a squarely shaped 16 hectare unit that does not (or indeed, cannot) tie on to the boundaries created by land not open for staking (recorded claims or patents).  The result would be a random collection of fractions and gores of open land.  How could the staking of these slices be justified under the legislation?  How could they be properly worked for assessment credits?  Accessing them might be a nightmare to achieve.   Unlike fractions which appear only upon surveying of a claim, and for which there is a separate provision for disposing of such lands (c.f. ss. 97(2)), the Act does not contemplate or encourage this type of fracturing of lands in unsurveyed territory.

[42]    Mr. Salo took the regulations literally.  He quite clearly stated that the Peever staking efforts could not have stopped at the eastern boundary created by Reed’s staking because that would have resulted in an undersized Peever claim and “[a]nything under would be considered an advantage”.  The result was that Peever had to cross the Reed boundary to achieve a 16 hectare unit size.  Mr. Salo was gambling that the claims were valid and that the PMR would adjust the boundaries later on.  Again, Mr. Salo read the regulations quite literally and in doing so, ignored those sections and words that go to the heart of the staking requirements.  The result is that neither claim can be described as forming a discreet 16-hectare unit on its own.  The regulations require that each claim be staked as a discreet 16-hectare unit or as close as is practicable.  This size must be achieved at the time of staking.  Obviously, the regulations are allowing for factors that might impede a staker’s ability to fulfill the size requirement – things such as boundaries of land that is not open.

[43]     Mr. Salo complained that the Ministry mapping was inaccurate and problematic.  With the greatest of respect, the mapping does not seem to have entered into his decision making other than to ferret out the best locations at which to lay out two 16 hectare claims covering his target.

[44]    The survey fabric or claim fabric in unsurveyed territory is random at best with large numbers of townships coming open for staking. The lifting of the Tamagami land caution in 1996 is an example.  The point is, there is no set starting point in unsurveyed territory.  It is only when there is a forfeiture or relinquishment to the Crown, be it patented or unpatented claim, that a parcel of land with finite boundaries will be open for staking, which was the case here.

[45]    To permit the two Robert Mining Claims to remain recorded has the effect of sterilizing the entire vicinity to further staking in a reasonable manner and negating the intent and purpose behind the creation of mining claim units.   The words in section 3 of Ontario Regulation 7/96 set out that the size must conform “as nearly as practicable” to the requirements set out in section 2.  The words “as nearly as practicable” in the current circumstances are found by the tribunal to have the meaning that “all bets are off”.  There is a discrete parcel of land open for staking.  It is finite.  It does not conform in any way to the parameters for shape, size, astronomic bearing etc. contemplated by the regulation.  In a competitive situation, one must grapple with just what to do with this parcel so as to bring whatever competitive staking will take place as close, “as nearly as practicable” to those requirements.  The tribunal finds that it is not unreasonable to read in to this staking regulation, this provision and based upon its jurisdiction found in s. 121 of the Act that decisions be based upon the real merits and substantial justice of the case, that staking of such open parcels of land within a cooperative must account for lands so as to be coterminous with lands not open for staking.

[46]    The regulation makes a point of referring to this in several places where one cannot conform to the requirements but it is understood that in doing so, one is abutting the lands not open for staking (c.f. for example ss. 3(2)).  While ss. 3(1) is permissive in that one is not obliged, but rather “may” stake such lands abutting or coterminous with lands not open for staking, this would only serve if it were a single staker staking a single unit with a single target.  Beyond that, any such actions defeat the purpose and spirit of the Act, which at the time of staking was in part “to encourage prospecting, staking and exploration for the development of mineral resources…”[4]  How can a team encourage exploration for development of mineral resources if its activities serve to sterilize tracts of lands open for staking, make the staking of those lands a potentially onerous undertaking, make the performance of assessment work on the gores and fractions created potentially less than desirable, thus depriving the province of much needed geotechnical data information for the public domain?

Re:  Reed Claim – lack of finish time on number one witness post

[47]    With respect to the Reed claim and the failure to put a finish time on the first number one witness post (which bore a start time of 9:00 a.m.) the tribunal has taken into account the decision in Labine v. MacGregor [5] and is not prepared to agree that it supports Mr. Salo’s application of the regulations.  Clause10 (2) (3) requires the inscribing of both the start and finish time on the number one post.  Mr. Salo believes that s. 12 (which deals with witness posts) through its reference to ss. 15(1) and (3) removes the need to inscribe a start and finish time on a witness post that witnesses a true number one corner post.  There really is no better way to describe his view.  In short, the sections do not contain the wording found in the aforementioned ss. 10(2) and so, there is no requirement to inscribe both times.

[48]    Similarly to this matter, the lands in Labine came open on a June 1, opening date and two parties were competing within twenty-four hours of the opening.  The tribunal is perhaps reading into the decision on the point of competition but is satisfied that the then Commissioner Ferguson was describing a competitive staking that took place after the approximately 18.34 acres of Mining Claim L.24175 in the Township of Gauthier came open for staking.  His words are “…the parties competed in the staking of the mining rights”. The respondent’s evidence in the case was that he did actually move northerly to the number one post to close the claim.  Reference was made to the evidence of the Mining Claims Inspector and his conclusion that “there was no oral evidence that the appellant had returned to the No. 1 post after completing the No. 4 post.”  The tribunal raises this wording here because the Commissioner in that case appears to have relied on fact that the respondent made an “attempt” to close the mining claim even though there seems to have been some question that an actual closing had occurred.  The Commissioner described a situation where the staker had gone “an extra mile” to return to the number one post, and appears to have accepted the proposition that sometimes, it is not necessary to “run a line that is completely situate on a body of water.”

[49]    The tribunal is not prepared to rely on this decision to support Mr. Salo’s position as it would appear that then Commissioner Ferguson applied the tests for the Act’s curative section 43 and determined that requiring the staker to blaze along the shoreline in question would have been confusing to others and that an attempt had been made in good faith to comply with the legislation.  There is no indication that the regulation was subject of interpretation as it is here.

[50]     This is not a similar case.  No evidence has been led to say that it was not possible to close the northern boundary line by crossing the lake and going back to the number one witness post.  The tribunal has to conclude that there was no attempt made in good faith to close the boundary because Mr. Salo had decided that it was not necessary.  As a result the claim was not completed.  In other words, the failure to inscribe a finish time was due to a mistaken interpretation of the regulations.  There was no evidence of an attempt being made to comply with the requirement.

[52]    Indeed, previous decision-makers under the Mining Act including Judge Godson have made it clear that staking rules are mandatory.[6]  Regulation 7/96 differentiates between a competitive situation and a non-competitive situation in s. 10 and states that both a start and finish time “must” be inscribed on the number one post in a competitive staking situation.  Such is not the case in non-competitive situations.  The regulation clearly treats a competitive situation more strictly.  It therefore makes sense that the rules for the number one post apply even for the witness posts used to identify the true number one corner.  A witness post is a substitute for the actual post and while it might be located away from the true number one corner in a competitive staking situation, there is no reason why it should not bear both a start and finish time.

[53]    Substantial compliance (as set out in the Act) is intended to forgive omissions that might occur in the staking process despite honest efforts to abide by the staking regulations.  The application of the test for substantial compliance should not be used to forgive staking actions that arise out someone’s decision to stake according to their own (mistaken) interpretation of the Act and regulation.   The staker’s actions must be judged in terms of the test set out in the Act under section 43.  In this instance, as noted above, the test has not been met.  Furthermore, Mr. Salo’s strict reading of the Regulation as far as witness posts is concerned, should not be the basis for overriding the fundamental rules of staking applicable to staking land that is open for less than 24 hours – namely that the four corners must be indicated; the direction of staking must be indicated; the start and completion times must be indicated on the number one post, and so on.

[54]     Even if the tribunal is wrong on this point, the Reed and Peever claims both fail for the reason that they do not comply with the regulation in that they do not form an “unbroken chain of spatially linked unpatented land”.  They were staked to overlap.  The reasoning for the tribunal’s view follows.

Re:  Peever and Reed Claims and the Overlapping Method of Staking

[55]    The Peever claim and the Reed claim were staked almost simultaneously.  There is a four-minute difference between the two in terms of finishing time although Mr. Reed did not cross the lake to inscribe a finishing time on his number one witness post.  Based on the testimony of Mr. Salo the tribunal is of the view that it can conclude that the intention was to leave it to the Mining Recorder to carve off the offending overlapping part of one of the claims.  The two stakers (Peever and Reed) started out at the same time under the direction of Mr. Salo and finished within four minutes of each other.  As noted above, it appears that the Peever claim, since it bears a later finishing time, was overlapped by the Reed claim.  Mr. Peever had to have crossed the east boundary of the Reed claim in order to lay down his own southern boundary.

[56]     As Mr. Salo stated, his team identified a target and their staking actions ensured that they ended up with the target surrounded by the two claims.

[57]     Mr. Salo quite candidly explained that the reasoning behind his staking actions lay in his interpretation of the Moneta and Racicot decisions of this tribunal.  The tribunal does not agree that either of these decisions lends support to the idea that the deliberate staking of overlapping claims by a team of stakers working in concert is in keeping with the legislation.  The resulting chaotic staking patterns would fly in the face of the orderly requirements of the legislation.

[58]    The tribunal comes to this conclusion as a result of reviewing the legislative requirements as follows.

[59]    Section 2 of Regulation 7/96 describes staking requirements in unsurveyed territory.  It requires that a mining claim in unsurveyed territory “must be staked so that it consists of one or more 16 hectare units; has a contiguous area of not less than 16 hectares and not more than 256 hectares; has boundaries running only north and south and east and west astronomically; and has the form of a rectangle.”  (Emphasis added)

[60]     The word “contiguous” is defined in the regulation to mean “a continuous chain of spatially linked unpatented, patented or leased mining claims or other mining land”.  (Emphasis added)

[61]     The word “continuous” has the meaning in the Concise Oxford English Dictionary (12th Edition) [7] of “without interruption”.  The Dictionary notes that “continuous” can be used to refer to space as well as time, as in “the development forms a continuous line along the coast”.  The phrase “continuous chain” therefore refers to a series of 16-hectare units connected one to the other.  The tribunal does not take this to mean that the connection is by way of overlapping.

[62]     Section 2 applies to the act of staking and the procedure to be followed on the ground so that the required results are achieved.  The results, as far as the tribunal is concerned, would be that one or more 16 hectare units would be staked and if more than one unit is staked then each unit is linked or connected by its boundaries to another 16 hectare unit – it does not overlap.  While the Act does deal with the possibility of overlapping claims resulting from the same land being staked by competing stakers (see s.44), this is not one of those situations.  There has been a deliberate overlap created.  The wording in ss. 44(4) is discretionary, with the use of the word, “may” – in that the recording may record a mining claim with respect to that part of the land [for which there is no overlap].   This is not a mandatory provision.   The exercise of such a discretion should take into account the purpose and objectives of the Act as well as the strict requirements of the regulation.  The recorder, and under appeal the tribunal, has the discretion to record the non-overlapping portions of overlapping claims.  How will the tribunal use its discretion in the circumstances of this case?  It finds that it will not use it to favour two stakings which are conducted by a single team, the objective or result (it doesn’t matter which) is to sterilize the entire swath of lands which have come open for staking in the immediate vicinity through creation of gores and fractions of such egregious configurations and lands left available for acquisition that what will occur is one of two things.  Lands must be disposed of through direct sale or mining claims of doubtful viability must be acquired.  This latter is even more problematic with the coming of the mining cells in the not too distant future.

[63]    Despite Mr. Salo’s assertions, neither the Peever claim nor the Reed claim were staked as one discreet 16 hectare unit. As already mentioned above, each one was staked in such a way that they both shared a specific overlapped area.  One had to concede its area to the other – at least that seems to have been the plan.  Either could have failed to meet the required standards and both might have been rejected.  The point is that neither could be described as being a part of a continuous chain and certainly neither one had a contiguous area.[8]  “Contiguous” in the Concise Oxford Dictionary is the meaning of “sharing a common border; next or together in sequence”.  Neither claim can be said to have these characteristics.  Each was staked as a unit with a chunk that might be removed by order of the mining recorder – which is what happened.  Neither one can be described as having been staked in such a way that it adjoins its neighbouring claim.  They overlap - deliberately.

[64]     The tribunal finds no support for this method of staking in the legislation.  Indeed, the result of such a method is that odd bits are created.  In this instance, each leaves a rough square bit of land in the area of their number 2 posts and number 4 posts respectively.  It is clear to the tribunal that the Salo method involves a deliberate overlay or overlapping of claims – not a continuous chain.  The fact that two different stakers were at work does not matter.   The intention was to deliberately create an overlapping pattern and not a continuous chain.  There was no reason for doing this other than the desire to surround and secure a “target”.  The lands that had come open for staking might have been oddly shaped but they certainly lent themselves to staking to create “chains” of mining claims.

[65]    The only reason for any claim to overlap another as far as the tribunal is concerned arises when one is staking open land and through oversight or to ensure complete coverage, one’s claim overlaps an existing recorded claim.  There is no basis for staking open land in such a way that overlapping claims are the result.

[66]The Salo staking method also created fractions.  These also resulted from his running of straight astronomical bearings that created perfectly straight lines but which meant that he could not or would not tie on to existing claims.  His reasoning was that the existing claim markers represented lines that were not straight.  Of course, this created small fractions of open land that by themselves can never form an acceptable mining claim.

[67]     The Regulations quite clearly indicate that the size of a mining claim must, “as nearly as practicable”, be a multiple of 16 hectares.  See ss. 2(5).  The regulations “forgive” an irregular area in s. 3 which deals with an irregular area lying adjacent to land that is not open for staking or to land under water.

[68]    Were Mr. Salo’s overlapping and absolutely straight line method used in the past, the province’s mining claim mapping would have presented a chaotic patchwork of claims and empty fractional (useless) spaces.

[69]    To be clear, the tribunal does not accept that deliberate overlapping staking is acceptable as far as the regulations and the Act are concerned.

Do Moneta and Racicot apply here?

[70]    The tribunal is not in agreement with Mr. Salo’s reliance on the aforementioned decisions.  Neither one justifies an overlapping staking method.

Moneta

[71]    As in this case, lands came open for staking that had been previously recorded.  The lands in question were not of legislated dimensions of the time (1986).  Not one of the stakings in that appeal met the 16 hectare requirement.  They were limited by the fact that surrounding lands were not open for staking and the lands that had come open were irregular in shape. Six claims were staked – none of which measured 16 hectares.  The smallest was 6.02 heactares and the largest was 13.77 hectares.  One of the issues that arose was what should a licensee do when he or she runs across the lines of another staker?  Can the line be crossed?  The other issue that is of interest for purposes of this case was what to do when the lands that come open do not lend themselves to 16 hectare units?  What to do with fractions or gores?

[72]    The crossing of the competitor’s line was acceptable as one would not be able to tell (while staking) whether or not the competitor was staking successfully or completely for that matter.  The competitor might have abandoned his or her efforts for all the staker knew.  In this way, the best attempt at staking a 16 hectare unit could be achieved.  (see page 16 Moneta).

[73]     Moneta differs from this case in that here the direction to the stakers was to deliberately stake two 16 hectare units one lying partly on top of the other – the deliberate overlap.  They do not form a continuous chain.  This is not a case of one staker running across the boundary of a competing staker.

Racicot

[74]    In this case, two stakers agreed to form a team of sorts to stake an irregular area of recently opened land.  The claim sizes were limited again by the fact that the opened land was 21.98 hectares in size.  Only one 16 hectare unit could therefore be achieved.  One staked a claim measuring 8 hectares; the other staked a neighbouring claim measuring 16 hectares.  The staker with the 16 ha. unit claim was dissatisfied with his efforts, staked again in the afternoon and recorded later in the day.  Meanwhile, a third party had staked a 22 ha. claim and recorded before the dissatisfied staker.  The issue for the tribunal was whether the 8 ha. staker could claim that he was limited to staking 8 hectares because of the staking of his partner.  The tribunal found this not to be the case as the lands were considered open and Racicot should have made every effort to stake a 16 hectare unit.  As in Moneta, the lines could be crossed because one never knew if the staking being done by a competitor or partner for that matter, would be completed and recorded.  The recorded claim would have formed a barrier to staking.  To carry this reasoning to its conclusion, for purposes of this decision, Racicot would have staked a 16 hectare unit and then staked the remaining 6 hectares as an undersized claim.

[75]     There is no indication that Racicot and Korba had located a “target” and were staking to secure the target.  They were staking open land of an irregular shape and hoped to secure that land for themselves.  They were not intentionally leaving gaps and fractions and were not deliberately laying 16 hectare units in a hodgepodge overlapping fashion.

Licensee Not Present for Boundary Adjustment

[76]     The tribunal is satisfied that its reasoning regarding the two claims at issue here nullifies any need to deal with the issue of who was to carry out the order and whether the signature on the letter advising that the adjustments had been carried out was in fact forged.

Conclusions

[77]    The tribunal finds that Mining Claims SSM-1234843 and SSM-3018248 are invalid for not having been staked in accordance with the Act and Regulations.

[78]     Mining Claims SSM-1234843 and SSM-3018245 will be cancelled.

[79]No costs will be ordered payable by either party to these appeals.

Supplementary Reasons – Commissioner Linda Kamerman

[80]    The tribunal raised this issue at the commencement of the hearing on the merits, pointing out that the mining recorder took jurisdiction.  Both indicated that they were prepared to proceed on that basis.  Nonetheless, given the depth to which the Acting PMR addressed this as a preliminary issue, in my opinion, it is necessary to examine it to ensure and confirm that there is jurisdiction to proceed.  Doing so on the acquiescence of the parties cannot create jurisdiction where none exists.

[81]    With this staking rush, the mining recorder encountered the unusual situation where disputes were received prior to the recording of whatever mining claim(s) had priority due to completion time.   As far as this combined appeal is concerned, this occurred in the case of the Robert Mining Claim 1234843 which was challenged by Mr. Rupert.

[82]    The issue raised by the mining recorder in his reasons, not addressed by the parties in this appeal, is one which goes to jurisdiction, both that of the mining recorder and of the tribunal.  Matters which go to jurisdiction can mean that there is no jurisdiction in the decision maker to make a decision on the merits of the case.  Therefore, it is significant and necessary that this be examined and properly disposed of.

[83]    Insofar as the lands in this appeal and others were staked, disputes were filed and received prior to the PRO having considered all of the applications to record received and having decided which applications would be recorded.  It also became apparent, as is often the case in unsurveyed townships, that there would be a “hotchpotch of overlapping and competing interests” which further complicated the necessary deliberations.

[84]    The filing of a dispute pursuant to section 48[9] contemplates a challenge against a recorded mining claim on the basis of illegality or invalidity.  (In his reasons, the mining recorder referred to a later version than was applicable in 2008, but the change was not substantive.  Rather, it involved the practice of removing forms from prescribed regulation and making them available on the MNDM website.) When these “disputes not against recorded mining claims as contemplated by the statute” were filed by Mr. Rupert, they were essentially filed against applications which were pending consideration by the mining recorder.   This created a procedural anomaly which the mining recorder resolved under the authority he found in section 110[10] and alternatively section 46.

[85]Relying on the seminal case of Dupont v Inglis, S.C.R. 1958 535, 3 M.C.C. 237, the mining recorder referred to the analysis of Rand J. that, as the hearing of a dispute places the first application/recording under scrutiny rather than pitting the opposing stakers against one another, what takes place initially is an examination of and decision made regarding that first staking as if no other staking [Rand J. used the word “action”] had taken place.  From this, the mining recorder made the inference that he has authority “to conduct an enquiry regarding the validity of a mining claim whether or not a dispute is filed.” [Ex. 2, Tab marked Recorder’s Decision, p. 13].

[86]     The PMR proceeded by receiving all applications to record and disputes. All were processed as “filed only” on the basis of his jurisdiction under ss. 46(5)[11].  By his correspondence, and recognizing the anomalous situation, the mining recorder used his discretion to continue pursuant to the provisions of ss. 46(5).  Otherwise the “filed only” claims would have expired after 60 days.  Normally, the continuance of this “filed only” state is ordered on the basis of a request by a disputant. Given the potential for confusion created by this anomaly, this step on the part of the mining recorder, applied the provision without request, essentially to preserve all comers until a determination could be made as to which applications would be recorded and which refused.

[87]    The PMR’s decisions concerning the various applications to record, including disputes or “challenges” to those whose staking had priority of completion, was made pursuant to the provisions of s. 110.   Recognizing that the words in  s. 110 could potentially be construed to be limited to an actual “dispute” filed in accordance with the terms of section 48, he provided alternative authority for his undertaking the hearing and decision. This is found in the general powers of a recorder pursuant to s. 46 to make determinations regarding the recording of mining claims.  While ss. 46(1) appears to call on an administrative act on the part of the mining recorder, he used it as authority to make adjudicative decisions necessary in the circumstances.

[88]The tribunal has compared the wording of the current subsections 110(1) and (2) contrasted with the words as found in this section after 1997 to its earlier version prior to 1990.[12]

[89]There are two possibilities both supporting the mining recorder in having proceeded as he did.  The first, which directly supports the avenue he has taken, whether through application of ss. 110(1) and (2) or through reliance on s. 46, is found in what was once called the Interpretation Act which was enveloped into the new Legislation Act, 2006.

Rule of liberal interpretation
64.(1)  An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 2006, c. 21, Sched. F, s.64 (1).
Incidental powers
78.  If power to do or to enforce the doing of a thing is conferred on a person, all necessary incidental powers are included. 2006, c. 21, Sched. F, s.78.

[90]     The power in question which the recorder is charged with is found under section 46.  The earlier version of ss. 110(2) recognized that there are questions which arise in connection with whether the Act has been complied with in regard to a mining claim which the recorder must decide before he can make decisions of compliance as contemplated by ss. 46(1).  Where there are more claims, s. 46 sets out, in part, procedures for claims which are not recorded, opening the door to launch a formal dispute, by having them marked as “filed only” and continued beyond the statutory 60 days, without which they would expire.

[91]     The old ss. 110(2) was clear in that it contemplated that questions would arise for the recorder to determine.  The new ss. 110(2) appears strictly limited to the dispute situation.

[92]    The consequences of refusing to accept and process a “before time” challenge against any claims which ultimately will be recorded accompanied by the required fee, as Mr. Rupert has done, is from a substantive perspective to pre-empt procedural provisions of the Act.  In substance, what the recorder has done is treat all of the various applications as though the proper procedures were followed, including his own actions to accept claims as “filed only” and continue them beyond the 60 day expiry limit. 

[93]     This is very much in keeping with authorities on statutory interpretation, the most notable being expressed by  the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex,[2002] 2.S.C.R. 559, wherein Elmer Driedger’s definitive formulation (p. 87 of his Construction of Statutes, 2nd ed., 1983) states:

Today there is only one principal or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The Mining Act contains a section addressing its purpose:

2.   The purpose of this Act is to encourage prospecting, staking and exploration for the development of mineral resources and to minimize the impact of these activities on public health and safety and the environment through rehabilitation of mining lands in Ontario. 

The role of the mining recorder is discussed in Dupont v. Inglis[13] by Rand, J.:

2.  The Act specifies in detail the acts to be performed by licensees as conditions of rights reaching ultimately to a patent in fee simple or a renewable lease of either land including minerals or the latter alone. …. Particulars of every application which the recorder "deems to be in accordance with this Act" are entered unless a prior application is already recorded and subsisting for the lands or "any substantial portion" of them. The application, with its accompanying documents, is filed with the office records;…
3.[The process for disputes and having an application noted as “filed only” until an adjudication has been completed is set out.]
5.  Up to this point the functions of the recorder are ministerial and administrative, that is, possessing some measure of discretion. But in the competition of licensees challenges to alleged stakings and other required acts are inevitable which must be settled without delay, more or less informally, in some proximity to the situs of the claims, and by persons made familiar by experience with the substance of those practical details. They are what the history and the exigencies of prospecting and mineral discovery have shown to be best suited to the orderly and efficient utilization of the resources, and in large measure are embodied in the statute. …
6.  Provision is therefore made for filing with the recorder a "dispute" alleging the invalidity of a recorded claim; if the disputant claims  to  be entitled to be recorded in whole or part,  a note of the filing is entered on the record of the claim…. By s. 124, as re-enacted by 1956, c. 47, s. 6, the recorder may give directions for the ... carrying on of proceedings before him, and in so doing he shall adopt the cheapest and simplest methods of determining the questions raised before him.

[94]    The same words found in the former s. 124 are now found in ss. 111(1) although the words the Court skipped over are most important for purposes of the Rupert appeal.  Subsection 111(1):  “The recorder may give directions for the conduct and carrying on of proceedings before him or her, and in so doing the cheapest and simplest methods of determining the questions arising… [emphasis added]”. 

[95]    In substance, what was before the recorder was a number of challenges to on the ground staking activities.  Due to the pre-emptive actions of Mr. Rupert, these challenges did not follow the statutory time frame for their filing and creation so as to be considered “disputes” within the meaning of s. 48.  However, the questions to be determined on the merits of these challenges are the same.   Which claims had priority?   Of those, was there substantial or deemed substantial completion?   If recording was disallowed, what about the next mining claim application filed for recording?  So long as subsequent claims were taken as “filed only” pursuant to the form for filing a dispute and ordered continued, what the recorder has done is adopt the cheapest, simplest and quickest method of determining the questions arising in connection with which claims would be accepted for recording.

[96]     When one contemplates the role of the mining recorder in administering mining claims, one comes to the conclusion that he or she has extensive powers and jurisdiction in relation to determining whether an application to record the staking of a mining claim is in compliance with the legislation and acceptable for recording.  [s. 43, 44, 46]  This extends to the term of art in the Mining Act, namely the dispute [s. 48].  However, the word dispute has a more generalized meaning, namely that of a conflict between two individuals. 

[97]    In a general sense, the applicable words of ss. 110(2) concerning the power of a mining recorder to “hear and … determine disputes between persons with respect to unpatented mining claims” have the potential to refer back to “a dispute” within the contemplation of s. 48.  Alternatively, they can mean the hearing and determination of conflicts between parties.  These words, liberally construed in accordance with s. 63 of the Legislation Act require that the 2008 version of the Mining Act in which these words are found be “interpreted as being remedial” in nature and that they “be given such fair, large and liberal interpretation as best ensures the attainment of” of the objects of the Mining Act.  The objects include the encouragement of prospecting and staking for the development of mineral resources.  This is one of many pivotal roles of the mining recorders under this version of the legislation.

[98]     Undoubtedly, this role will change once the conversion to map staking of mining cells is fully implemented throughout the province, but nonetheless, the underlying intent of both is encouragement of acquisition of mining claims by application of the relevant legislation to further the goals of development of the mineral industry. 

[99]    There is an alternative approach to this conundrum of statutory interpretation which would have the same result, namely to recognize that the mining recorder does possess jurisdiction to make determinations regarding the multiple incidents of staking and receipt of applications to record.  This would have been a much easier interpretation to make under ss. 110(1) as it was previously worded, where a recorder could determine any question as to whether the provisions of the legislation had been complied with (i.e. specifically in relation to staking of a mining claim) is a more general and encompassing wording.

[100]    This question arises in the arguments and interpretation concerning the merits which have been addressed in the Reasons set out above.

 

 

1 Commissioner Kamerman has written Supplementary Reasons elaborating on this matter which follow these Reasons.

2 Moneta Porcupine Mines Inc. and Thomas A. O’Connor v. Michael Tremblay  MA 016-98, February 4, 1999 Unreported

3 Frank Racicot v. MNDM and Reginald James Charron  MA 025-97; MA 026-97, November 23, 1999 Unreported

4 s.2

5 7 M.C.C page 555

6 McGill v. Brookbank (1931), 3 M.C.C. 76

7Concise Oxford English Dictionary (12th Edition) 2011 Oxford University Press

8Ibid., supra note 7

9 48 (1).  A dispute, verified by a detailed statement of claim and a certificate, may be filed with the recorder by a person alleging that a recorded claim is illegal or invalid in whole or in part and, if the disputant or the person in whose behalf he or she is acting claims to be entitled to be recorded for or to be entitled to any right or interest in the lands or mining rights, or any part thereof, comprised in the disputed claim, the dispute shall so state, giving particulars, and the recorder shall receive and file such dispute and shall enter a note thereof upon the record of the disputed claim. [note the version the Acting PMR relied upon is 1990, c.M.14, as amended, ss.48(1); 1997, s.7; 1999, c. 12, Sched. O, ss.21(1); 2009, c. 21, s.26 the latter of which post-dates the date of the staking, June 1, 2008. ]

Properly should be:  48. (1) A dispute in the prescribed form, verified by a detailed statement of claim and a certificate, may be filed with the recorder by a person alleging that a recorded claim is illegal or invalid in whole or in part and, if the disputant or the person in whose behalf he or she is acting claims to be entitled to be recorded for or to be entitled to any right or interest in the lands or mining rights, or in any part thereof, comprised in the disputed claim, the dispute shall so state, giving particulars, and the recorder shall, upon payment of the required fee, receive and file such dispute, and shall enter a note thereof upon the record of the disputed claim.  R.S.O. 1990, c.M. 14, as amended, s. 48(1); 1997, s. 7; 1999, c. 12, Sched. O, ss. 21(1).

10 110. (1)  A recorder may hear and, subject to the right of appeal provided in section 112, determine disputes between persons with respect to unpatented mining claims.  1999, c. 12, Sched. O, ss. 39(1).
(2)  If a dispute relates to whether the provisions of this Act regarding mining claims have been complied with, the recorder shall hear and determine the dispute unless,
(a)  the Commissioner orders otherwise; or

(b)  the Commissioner agrees to hear and determine the question pursuant to a request made by the recorder. 1999,  c.12, Sched. O, s. 39.

(5)  The decision of the recorder is final and binding unless appealed from as provided in section 112. 1999, c. 12, Sched. O, ss. 39(1).

11 46. (1)  If, in the recorder’s opinion, an application to record a mining claim complies with all the requirements for staking and recording the claim, the recorder shall record the claim and file it, along with the sketch or plan and certificate.  1999, c. 12, Sched. O, s. 39(1).
(2)  If, in the recorder’s opinion, an application to record a mining claim does not comply with all the requirements for staking and recording the claim the recorder shall not record the claim and, in particular, the recorder shall not record a claim related to land that is not open to staking.  1999, c. 12, Sched. O, s. 39(1).
(3)  If the recorder does not record a claim under subsection (2), the applicant may, on paying the required fee, require the recorder to file the application and any question involved may be determined in accordance with section 48 and 112.  1999, c. 12, Sched. O, s. 39(1).


(5)  An application filed under subsection (3) is invalid and of no effect 60 days after it is filed unless a dispute is filed under section 48 or an appeal is taken under section 112 or the Commissioner or recorder orders otherwise.  1999, c. 12. Sched. O, s. 20.

12 110. (1)  Subject to the right of appeal provided in section 112, a recorder has the power to hear and determine disputes between person as to unpatented mining claims situate in his or her mining division.

110. (2)  Any question as to whether the provisions of this Act regarding a mining claim have been complied with, unless the Commissioner otherwise orders, or unless the recorder with the consent of the Commissioner transfers the question to the Commissioner for his or her decision, shall in the first instance be decided by the recorder. R.S.O, 1990, c. M.14.

13 1958 CarswellOnt 74; [1958] S.C.R. 535, 14 D.L.R. (2d) 417, Horan 237; Supreme Court of Canada; June 26, 1958