Glencore Canada, Jacques Robert, Randall Salo, Mining and Lands Commissioner, Ontario, Decision

File No. MA 005-14

M. Orr
Deputy Mining and Lands Commissioner

Wednesday, the 10th day of December, 2014.

THE MINING ACT

IN THE MATTER OF
Mining Claim P-4268814, staked by Mr. Jacques Robert and recorded in the name of Jacques Robert on the 4th day of June, 2012, as to a 100% interest and P-4269047 and 4269048, staked by Mr. Randall Salo and recorded in the name of Randall Salo on the 4th day of June, 2012, as to a 100% interest, all situate in the Township of Hoyle, in the Porcupine Mining Division, (hereinafter referred to as the “Robert and Salo Mining Claims”);
(Amended November 26, 2014)

AND IN THE MATTER OF
Section 32 of the Mining Act, R.S.O. 1990, c. M. 14, as amended.
Repealed 2009, c.21, s.13 and proclaimed on the 1st day of April, 2013;

B E T W E E N:

GLENCORE CANADA CORPORATION
Appellant

- and -

JACQUES ROBERT AND RANDALL SALO
Respondents

AND IN THE MATTER OF
An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 18th day of March, 2014, for a declaration that those areas, as shown in red as “additional exclusion areas” in Schedule “A” attached hereto and forming part of this Order, be lands that are excluded from staking pursuant to section 32 of the Mining Act.
(Amended November 26, 2014)

O R D E R

WHEREAS THIS APPLICATION was received by this tribunal on the 17th day of April, 2014;

AND WHEREAS this matter was heard in the courtroom of this tribunal on the 18th day of November, 2014, with an Order being issued on the 26th day of November, 2014;

AND FURTHER TO correspondence dated the 4th day of December, 2014, from Mr. Junior Sirivar, co-counsel for the applicant, which was copied to the respondents, requesting clarification from the tribunal of its Order of the 26th day of November, 2014, with specific reference to one of the subject Mining Claims, being Mining Claim P-4269048;

1.      IT IS ORDERED that the Order of the tribunal, dated the 26th day of November, 2014, be and is hereby rescinded and replaced with this Order.

2.      IT IS FURTHER ORDERED that this appeal be and is hereby granted and that the areas marked on Schedule “A” as “Additional Exclusion Areas” be excluded from the Robert and Salo Mining Claims pursuant to section 32 of the Mining Act.

3.      IT IS FURTHER ORDERED that the notation “Pending Proceedings”, which was recorded on the abstracts of Mining Claims P-4268814, 4269047 and 4269048, situate in the Township of Hoyle, in the Porcupine Mining Division, to be effective from the 17th day of April, 2014, be removed from the abstracts of Mining Claims P-4268814, 4269047 and 4269048.

4.      IT IS FURTHER ORDERED that the time during which Mining Claims P-4268814 and 4269047 were under pending proceedings, being the 17th day of April, 2014 to the 26th day of November, 2014, a total of 224 days, be excluded in computing time within which work upon the Mining Claims is to be performed and filed.

5.      IT IS FURTHER ORDERED that the 6th day of January, 2016, be fixed as the date by which the next unit of prescribed assessment work, as set out in Schedule “B” attached to this Order, must be performed and filed on Mining Claims P-4268814 and 4269047, pursuant to subsection 67(3) of the Mining Act and all subsequent anniversary dates are deemed to be January 6 pursuant to subsection 67(4) of the Mining Act.

6.      IT IS FURTHER ORDERED that Mining Claim P-4269048, be and is hereby cancelled, having been staked on lands found to be exempt pursuant to section 32 of the Mining Act.

7.      IT IS FURTHER ORDERED that, pursuant to subsection 129(2) of the Mining Act, that this Order and Reasons shall be effective the 26th day of November, 2014 nunc pro tunc.

8.      IT IS FURTHER ORDERED that no costs shall be payable by either party to this appeal.

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).

DATED this 10th day of December, 2014.

Original signed by M. Orr

M. Orr
DEPUTY MINING AND LANDS COMMISSIONER

 

 

SCHEDULE “A”
AVAILABLE UPON REQUEST

 

SCHEDULE “B”

MINING CLAIM

NEW DUE DATE

 

 

P-4268814

JANUARY 6, 2016

P-4269047

JANUARY 6, 2016

 

 

 

File No. MA 005-14

M. Orr
Deputy Mining and Lands Commissioner

Wednesday, the 10th day of December, 2014.

THE MINING ACT

IN THE MATTER OF
Mining Claim P-4268814, staked by Mr. Jacques Robert and recorded in the name of Jacques Robert on the 4th day of June, 2012, as to a 100% interest and P-4269047 and 4269048, staked by Mr. Randall Salo and recorded in the name of Randall Salo on the 4th day of June, 2012, as to a 100% interest, all situate in the Township of Hoyle, in the Porcupine Mining Division, (hereinafter referred to as the “Robert and Salo Mining Claims”);
(Amended November 26, 2014)

AND IN THE MATTER OF
Section 32 of the Mining Act, R.S.O. 1990, c. M. 14, as amended.
Repealed 2009, c.21, s.13 and proclaimed on the 1st day of April, 2013;

B E T W E E N:

GLENCORE CANADA CORPORATION
Appellant

- and -

JACQUES ROBERT AND RANDALL SALO
Respondents

AND IN THE MATTER OF
An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 18th day of March, 2014, for a declaration that those areas, as shown in red as “additional exclusion areas” in Schedule “A” attached hereto and forming part of this Order, be lands that are excluded from staking pursuant to section 32 of the Mining Act.
(Amended November 26, 2014)

REASONS

This matter was heard in the courtroom of this tribunal on November 18, 2014.  Mr. Junior Sirivar and Ms. Atrisha S. Lewis appeared as co-counsel for the appellant, Glencore Canada Corporation (“Glencore”) and Mr. Randall Salo appeared as agent for the respondents, Randall Salo and Jacques Robert (“Salo and Robert”).

On April 17, 2014, the appellant, Glencore, appealed a decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated March 18, 2014, to this tribunal.  In that March 18, 2014 decision, the Provincial Mining Recorder (“Recorder”) had exempted certain lands from staking pursuant to section 32 of the Mining Act (the “Act”).  The March 18 decision of the Recorder was made as a result of the parties having filed certain documentation that had been requested by the Recorder in a previous decision dated January 8, 2014.  Neither party appealed the January decision.  The January decision contained the Recorder’s reasons and his interpretation of certain key phrases and words, none of which were disputed by either party.  The Recorder’s interpretations were not at issue in the hearing before this tribunal, although a preliminary concern was raised by the tribunal that asking it to simply accept the Recorder’s interpretations would lead to it being hamstrung if there was a need to disagree.  As it turned out there was no need to explore this issue as the parties were not in disagreement as to the definitions but only as to what items fell within the definitions.  The tribunal is satisfied that in this instance it was not necessary to determine whether the definitions (which were the subject of the first decision of January which was not appealed) were appropriate.

According to the evidence submitted by Glencore, it controls and manages an extensive tailings management area (“TMA”) and within that area, are a number of associated works such as dams, reservoirs, culverts, dykes and so on.  The Respondents Salo and Robert had staked mining claims covering some of these works. The Recorder held in his first decision that the mining claims had been staked without the consent of the surface owner Glencore on areas where “improvements” existed.  As such, those areas were to be exempt from staking pursuant to section 32 of the Act.

The wording of the January 8, 2014, decision of the Recorder reads in part:

“That “dams” and “waterworks” (improvement) within the meaning of Section 32 of the Mining Act (as it was on June 1, 2012) apply to the mining claim therefore the prior consent of the surface owner (now Glencore Canada Corporation) was required to stake where those improvements exist within the mining claims.”

“That “artificial reservoir” (improvements) within the meaning of Section 32 of the Mining Act also applies to the mining claims but only where surface water is collected and held in ponds, not to the entire “Tailings Management Area” (TMA).”

The Recorder (going by his reasons), appears to have dealt with the same information that came before this tribunal on appeal.  The Recorder also had the same witness, Mr. David Yaschyshyn, before him giving testimony as to what the improvements were and their functions.  As in the matter before the tribunal, Mr. Salo represented himself (and Mr. Robert).  The Recorder reviewed the fact that various approvals from government regulators have been given regarding the TMA over a period of time.  Mr. Yaschyshyn (according to the Recorder) provided, “among other things, a basic explanation of the TMA operation and location of the improvements”.

Mr. Salo argued that Section 32 of the Act should not apply to the mining claims “as the terms dam, waterworks and reservoir were never intended to include the operation of a tailings area” (words of the Recorder).  Previously, and before this tribunal, he argued that the “multiple use principle” should apply and that the words of section 32 were directed at operations or uses dealing with potable water.  The feature at issue (before the Recorder and this tribunal) amounted to a sewage disposal system and could therefore not be exempted.

There are no definitions for the items listed in section 32 of the Act and so the Recorder (as does this tribunal) looked to other legislation for guidance.  He considered the Water Resources Act (1960), the Lakes and Rivers Improvement Act, the Environmental Protection Act and the Ontario Water Resources Act.  He considered the law of statutory interpretation, the purpose of the Mining Act, and the specific definitions and found the definitions for “dam” and “water works” as well as “artificial reservoir”.  This latter phrase presented him with some difficulty in interpretation and he decided that “there are reservoirs within the TMA but they are only on the parts of the mining claims where surface water collects (ponds)….”  He also found that certain dams authorized by Ministry of Natural Resources and Forestry (MNRF) and Ministry of the Environment (MOE) were improvements within the meaning of section 32.  In addition, he found that the ditches, pipes, pumps and other improvements designed for the collection, treatment, storage and distribution of water within the TMA fall within the meaning of “waterworks”.  The tribunal finds it necessary to set these things out because of what was not included in the areas to be exempted from staking under section 32 by the Recorder and also because there are no words that seem to indicate why similar, if not identical improvements were not included.  Or, for that matter, why works that appear to fall within the definitions set out by the Recorder are not exempted by virtue of the fact that they are included in the operations of a tailings area.

The tribunal seems to have heard virtually the same evidence from the same witnesses (although Mr. Mathew Payten for Glencore did not testify).  The key witness was Glencore’s Engineer, Mr. Yaschyshyn and he also testified before this tribunal.  The tribunal found it necessary to recall this witness at least twice in order to have evidence clarified.  It was difficult to understand in clear and precise terms where such features as the temporary water reservoir was located; how large it was; where the stored groundwater reservoir was located; how large it was; and where the thickened tailings discharge pipe was located (it turned out to not be on the subject mining claims).  The stored groundwater reservoir according to Mr. Yaschyshyn is found just below the surface of Mining Claim P-4269048 and indeed, the same claim as well as lands to the north of it (not staked).  This reservoir appears to be what is referred to as an “impoundment basin” in an Ontario Water Works Commission “Sewage Works Approval” document from 1971 which deals with the collection and management of the tailings.  Mr. Yaschyshyn identified this document as such – again, only after being asked by the tribunal.  A clearer presentation by this witness through his counsel would have been appreciated.

It was Mr. Yaschyshyn’s testimony that the improvements that Glencore wants to see included in the areas to be exempted under section 32 form an integral part of a whole tailings management system and that they all work together.  They include culverts, dykes, dams, ditches and artificial reservoirs.  The tribunal takes the latter phrase to include any man-made reservoirs and the witness assured the tribunal that the groundwater reservoir was man-made. The tribunal could not find any reason why this phrase presented any difficulty to the Recorder.  It does not make sense to the tribunal that a collection basin such as the stored groundwater reservoir should not be exempt on the basis that it is an artificial reservoir. Nor could the tribunal determine from the Recorder’s decision whether he had considered the improvements that Glencore presented to this tribunal at this hearing and rejected them.  They appear to be similar if not the same as what the Recorder agreed were “improvements” as listed in section 32 of the Act.  The tribunal could find no reason why they should not be included in the requested exemption by Glencore.

The tribunal accepts Mr. Yaschyshyn’s view that all the parts or works are connected somehow one to the other and the tribunal can see from the mapping provided that the goal of such a system is to prevent seepage (as much as is technologically possible) from making its way into the Porcupine River.

The tribunal is therefore prepared to grant Glencore’s appeal and allow for the areas marked on Exhibit 5 as “additional exclusion areas” to be exempt from staking pursuant to section 32.  The tribunal is not prepared to accept Mr. Salo’s view that the improvements listed in section 32 deal only with potable water.

Even if the tribunal is wrong on any of this, given that the Act offers no help in terms of definitions but does have as its purpose the minimization of mining activities on public health and safety and the environment, it seems wiser to err on the side of caution.

The tribunal will order that the pending proceedings notation be removed from the abstracts of all three subject mining claims and that the time during which Mining Claims P-4268814 and 4269047 were under pending proceedings be excluded in computing time within which work is to be performed and filed. The tribunal will fix a new anniversary date for the performance and filing of the next unit of prescribed assessment work on these two mining claims.

The tribunal will further order that Mining Claim P-4269048 be cancelled, having been staked on lands found to be exempt from staking.

No costs shall be payable by either party to this appeal.