File No. MA 029-10

L. Kamerman
Mining and Lands Commissioner

Friday, the 20th day of June, 2014.

THE MINING ACT

IN THE MATTER OF
Filed Only Mining Claim 4243485, situate in the Township of Nicolet, in the Sault Ste. Marie Mining Division, staked by Mr. Stan Trudeau, to have been recorded in the name of Mr. Roy Rupert (hereinafter referred to as the Rupert Filed Only Mining Claim 4243485);

AND IN THE MATTER OF
Ontario Regulation 196/06, as amended, Claim Staking;

B E T W E E N:

ROY J. RUPERT
Appellant

and

MINISTER OF NORTHERN DEVELOPMENT AND MINES
Respondent

AND IN THE MATTER OF
An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 13th day of August, 2010, to not record the Rupert Filed Only Mining Claim 4243485.

O R D E R

WHEREAS THIS APPEAL was received by tribunal on the 10th day of September, 2010;

AND WHEREAS both parties consented to have this matter heard by written submissions which was confirmed by the tribunal through the issuance of an Appointment For Written Hearing on the 9th day of June, 2011;

1.         IT IS ORDERED that this appeal be and is hereby dismissed.

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

3.         THE PROVINCIAL MINING RECORDER IS HEREBY DIRECTED to rescind MNDM Withdrawal Order No. W-SSM-70/10, dated the 12th day of August, 2010, as related to those lands covered by Rupert Filed Only Mining Claim 4243485 and to reopen only these lands covered by Rupert Filed Only Mining Claim 4243485 for staking, no less than 30 days from the issuance of this Order.

THIS TRIBUNAL FURTHER ADVISES that pursuant to subsection 129(4) of the Mining Act, 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 recording in the Provincial Recording Office in accordance with the aforementioned subsection 129(4).

DATED this 20th day of June, 2014.

Original signed by L. Kamerman

L. Kamerman
MINING AND LANDS COMMISSIONER

 

File No. MA 029-10

L. Kamerman
Mining and Lands Commissioner

Friday, the 20th day of June, 2014.

THE MINING ACT

IN THE MATTER OF
Filed Only Mining Claim 4243485, situate in the Township of Nicolet, in the Sault Ste. Marie Mining Division, staked by Mr. Stan Trudeau, to have been recorded in the name of Mr. Roy Rupert (hereinafter referred to as the Rupert Filed Only Mining Claim 4243485);

AND IN THE MATTER OF
Ontario Regulation 196/06, as amended, Claim Staking;

B E T W E E N:

ROY J. RUPERT
Appellant

and

MINISTER OF NORTHERN DEVELOPMENT AND MINES
Respondent

AND IN THE MATTER OF
An appeal from the Decision of the Provincial Mining Recorder, Ministry of Northern Development and Mines, dated the 13th day of August, 2010, to not record the Rupert Filed Only Mining Claim 4243485.

REASONS

Mr. Rupert represented himself in this appeal from the decision of the Provincial Mining Recorder (the mining recorder) Ministry of Northern Development and Mines, dated August 13, 2010.  The Minister of Northern Development and Mines (MNDM) was represented by Mr. Michael Mercer, counsel.  The parties proceeded on the basis of written submissions and an Agreed Statement of Facts.  This situation stems from a competitive staking situation which occurred on June 1, 2008.  Mr. Rupert filed a dispute against the mining claim which was recorded.  In this he was successful.  However, the staking of the claim to have been recorded in his name, Filed Only Mining Claim 4243485 (referred to as the Filed Only Mining Claim, the Rupert Mining Claim or the Trudeau staking) was refused for recording.

Mr. Rupert’s staker, Mr. Stan Trudeau, prepared a standing stump post to be used as one of his corner posts in advance of the date and time the land came open for staking.  He also, in advance of staking, prepared loose posts for his other three corners.  These three loose posts were not raised as issues or addressed in the decision of the mining recorder.

The mining recorder found that construction of a standing stump post prior to the time the lands came open for staking constituted erection of that post.  As erecting of corner posts have historically been regarded and legislatively held to be an essential element of staking a mining claim and to be undertaken only after lands come open for staking, the Filed Only Mining Claim was refused for recording.  Mr. Rupert appealed.

Mr. Rupert based his appeal principally on three considerations. First, the language used in the staking rules has changed substantively from those contained in the Mining Act throughout most of the last century.  This occurred both in 1991 and particularly in 1996 when traditional drafting conventions were no longer used.  Mr. Rupert submitted that, as a result of the changes, the rules themselves have changed.   Secondly, it is absurd to consider the erection of a stump post which is already erect, to be an essential element of staking which cannot take place prior to the lands coming open, when contrasted with tolerance for prior preparation of loose posts in advance of lands coming open.  Mr. Rupert insisted that the legislation should specifically address how a standing stump post can be erected or, alternatively, make its use illegal during the competitive first 24 hours of lands being open for staking.  Thirdly, if this is, in fact the rule in place for competitive staking, namely within the first 24 hours after staking, it is too heavy a burden on a staker to be familiar with.

Mr. Rupert also suggested that there is nothing to be gained by throwing the lands open for staking all over again.

Mr. Rupert is correct that the drafting and stylistic elements of the staking rules have changed.  However, the essential elements required in staking a valid mining claim have not changed.  The treatment of the erection of a standing stump has its origins in two principles.  Firstly, the sanctity of time of commencement of staking in a competitive situation is a principle that cannot be breached.  Secondly, the title to loose posts prepared prior to staking is not seen in law to pass to the staker and mining claim until the essential elements of erection and inscription take place.

A review of the history of the provisions, read as a whole, will explain the tribunals decision that the construction of a standing stump post constitutes the act of erecting that post, notwithstanding the appearance of absurdity.  As such, the staking in question commenced prior to opening and therefore should be refused for recording and the appeal dismissed.

Issues

The essential elements of staking a claim were articulated just prior to their being moved to regulation in 1991, as erection and inscription of corner posts and blazing or otherwise demarcating boundaries. 

  1. Have these essential elements changed either when the rules were moved to regulation in 1991 or when the language governing the staking rules was further changed into plain language in 1996?
  2. How are construction of loose posts treated for the purposes of staking
  3. Is the construction of a standing stump post the equivalent of the construction of a loose post?
  4. What, if any, is the impact of the rules of substantial compliance and deemed substantial compliance found in section 43 of the Mining Act to this case?

Argument and Submissions

O Reg. 7/96, as amended, is the applicable regulation for purposes of this appeal, having been in effect on June 1, 2008.  Similarly, such provisions of the Mining Act R.S.O. 1990, as amended[1] are applicable.

There is agreement that all four corner posts were prepared in advance of the lands coming open for staking.

Of these, one stump post was prepared.  According to Mr. Mercer, a “standing stump post is constructed by hewing an existing tree square”.   To be considered as a stump post for use as a corner post, a tree must be cut off at the requisite 1.2 metre height and then faced and squared in accordance with dimensions specified in the regulation.  By its nature, its roots will remain firmly planted in the ground.

By contrast, three loose posts were cut to the requisite length of 1.2 metres, squared on four sides and faced 30 cm from the top [s. 12(1)] prior to the opening of lands for staking at 9:00 a.m. daylight savings time, on June 1, 2008.  Presumably, once the “preparation” was completed, these loose posts were left lying on the ground, having been placed in the vicinity of the location of proposed corners of the claim.

Whether a stump or loose posts are prepped in this manner, they will be ready for the inscriptions required by the regulation.  Loose posts must be erected while standing stump posts are, by their nature, standing stump posts and incontrovertibly, are erect by nature.

The prior construction of loose posts was not an issue in this appeal.  However, it did serve as a launching point for the main thrust of argument that construction of loose posts, tolerated or accepted, should be regarded as equivalent to prior preparation of a standing stump post.

The essence of Mr. Rupert’s position is that the act of “erecting” a standing stump post is a minor technical matter of dubious legal value. To construe the prior cutting and squaring of a stump post as an act of staking is an interpretation which is not supported by the way the staking rules are now drafted in O.Reg. 7/96.  He acknowledged that this might have been the case prior to legislative amendments to the Mining Act in the Mining Act Amendment Act, 1989, S.O. c. 62.

The change in drafting of the regulation in O. Reg. 7/96 into plain language was highlighted.  Beyond that, mandatory provisions formerly required for a valid staking, namely the use of the word “shall” have been changed to the word, “may”.  It is relevant to this appeal that the word “shall” is no longer used.  Mr. Rupert submitted that the tribunal adopt the following interpretation found in ss. 8(2):  a mining claim “is staked” which is in contrast to language such as “must be staked”.  Cl. 10(2)(2) uses the word “may” in the sentence, “Only the recording licensee may erect,”.  Mr. Rupert particularly underscored that this new ss. 8(2) removed the requirement that the posts be staked through the erection of posts by the licensee.  He also pointed out that the mandatory new provisions do not include “erection” in sections 9, 15 and 16.   Subsection 9(2) permits the construction of a post by a person other than the staker, which demonstrates that construction is distinguished from erection.

This shift in legislative drafting in O. Reg. 7/96, according to Mr. Rupert, has invalidated historical staking factors dating back to mid-20th century law.  There is nothing now to suggest that this “historic construct” was incorporated into the regulation applicable in 2008.  Prior to 1996, O. Reg. 115/91 required that posts “shall” be erected [see ss. 8(2) and cl. 8(9)(b) of that regulation].  Mr. Rupert regards reading a mandatory “shall” into the current wording (i.e. implying that the word is there when it is not specifically found in the language) as what he characterized as subjective rather than purely logical and objective.  The logic which required the erection of a post is no longer found in the wording.

Given that prior preparation of a loose post does not constitute an essential element of staking, Mr. Rupert asked whether the implication could be made that the use of a loose post is the preferred type of post during the competitive first 24 hour window.  He went so far as to suggest the use of standing stump posts during the first 24 hours must be considered illegal and suggested that if this is the case, the legislation should specifically state that this is the case.  Instead, the wording used has to be regarded as ambiguous.  There is nothing in the regulations which requires that a staker erect a post which by its nature (an act of God) does not require that it be erected.  In his estimation, the subjective view that erection must take place is no longer justified.

If it is truly the case that the recognized purpose of ground staking is the demarcation of a mining claim on the ground for others in the vicinity both during competition and long afterwards, a standing stump post is far preferable as far as meeting such an objective is concerned due to its longevity.

Had Mr. Trudeau prepped the post by cutting it down, there would have been no issue.  Its use as a loose post would have been allowed.  This is an absurd conclusion and result, whereby an inferior type of post will be preferred in competitive staking.  Mr. Rupert stated, “the action involved in creating a standing post is exactly the same as the actions normally involved in hewing out a loose post from a tree, excepting only that the final step of trimming a loose post off a stump is omitted when making a standing post.  From any reasonable perspective, it is not logical to allow one staker to construct a post and disallow the same or lesser preparatory construction works by another person on the grounds that the loose post is somehow less complete.”

The prohibition arises only because it has been deemed by the mining recorder to be an act of commencement of staking prior to opening.

Due to the fact that this matter commenced as a dispute and was a competitive situation, Mr. Rupert felt that it was necessary to underscore that mere seconds are saved through use of a stump instead of having to erect a loose post.  In that competitive situation, the time saved was more than offset by the erection of the unnecessary line posts which had been completely prepared and inscribed ahead of time.

Mr. Rupert pleaded a lack of experience in a competitive situation on behalf of his staker and helper, who were otherwise knowledgeable and experienced in non-competitive situations.  Both believed in good faith that the preparation of posts including stump posts in advance of staking was permissible for lands that were open less than 24 hours.  He argued that interpretation of the various parts of the staking regulation constitutes an unduly heavy burden of legal knowledge on a prospector who attempts to stake in good faith. Interpreting the use of a standing post on opening day as representing the commencement of staking prior to opening is an historical construct based on legislation as it was written many years ago.

Mr. Mercer countered that nothing in the legislation or law permits greater leniency due to lack of proper knowledge of legislative requirements.

Mr. Mercer argued that the erection of a post is fundamental to the staking process so that preparation of a stump post is an act of “erecting a post”.  Preparing a stump post constitutes an act of erecting it.  To do so prior to the time lands coming open for staking is prohibited as it constitutes the commencement of staking.  “To allow otherwise would allow the staker in question to have an unfair advantage over other stakers”. [Comba et. al. v. St. Louis, (1985), 7 M.C.C. 88 at 95].  He took the position that the drafting of the law has changed but it has not changed in substance.

Mr. Mercer disagreed with all assertions, maintaining that the requirements of the Mining Act have not changed.  This was clearly established in Parres v. Skead Holdings Ltd., unreported, MLC, 17 June, 1991.  Deputy Commissioner Yurkow considered the staking provisions.  Rather, ss. 8(2) replaces and repeats those requirements set out in the earlier cl. 47(1)(a) of the Mining Act, R.S.O. 1980, c.268.  There is no material change to the requirements for staking a claim, one of which involves the erection of a post.  Mr. Rupert disagreed, stating that the case was based upon the law before the 1991 regulation took effect.  At that time, there was no question that the physical construction of a post constituted erection and therefore staking.  On page 3 of Skead, it states: “Subsection 47(1) of the Mining Act sets out what a prospector must do to stake a claim.  There are three basic acts in the staking process:  erection of posts, inscription of posts and blazing of lines.”

Mr. Mercer’s next argument is eloquently put and is reproduced:

“The sanctity of the time lands come open for staking is of profound importance to the Mining Act.  Adherence to the time of opening for staking is crucial to the entire staking system and there can be no modification of the basic requirement of not commencing to stake prior to the time that the lands come open. [ Meunier v. Maciejewski, (unreported), Mining Act 018-04, March, 2006 at page 21.; Leach v. Wilson, (1977) 5 M.C.C. 368 at 371]”

According to Mr. Mercer, the appellant has relied on the words in ss. 10(2) for the proposition that the erection of a post by the licensee is optional.  Contrary to Mr. Rupert’s argument, the use of the word “may” in cl. 10(2)(2) does not mean that the erection of the corner post is optional or that someone other than the recording licensee is permitted to erect in the first 24 hours after lands come open for staking.  Rather, the erection of the corner post, made mandatory by ss. 8(2) can be done only by the recording licensee.  In his submission, Mr. Rupert has ignored that it is “only” the recording licensee who “may” erect the post.  The two words taken together cannot be interpreted as a permissive rather than mandatory provision.

A violation of a legislative requirement cannot be viewed as a “minor technical matter” sufficient to preserve the staking.  There is a purpose behind the technicalities of the legislation and they should not be readily dismissed.  A non-compliant staker who is unaware of these technicalities risks having his staking disallowed.  This is emphasized in a competitive staking environment. [c.f. Parres v. Skead]

Mr. Mercer maintained that there is nothing in O. Reg. 7/96 which has changed the long-standing prohibition against erecting a standing stump prior to the lands coming open for staking.  In the context of a standing stump post, which, by definition, must be planted in the ground, there is no distinction between erection and construction.  The act of constructing a standing stump constitutes the act of erection.  It follows that construction must be prohibited prior to the lands coming open.

Evolution of Acceptable Staking and Pre Preparation Practices

Mr. Rupert has asserted as a given, that over time and through the evolution of the staking rules,  that many acts of marking, reconnaissance or prepping of a mining claim are no longer regarded by the staking community or mining recorders to be essential elements of staking.

Following from this, according to Mr. Rupert, are the essential elements for staking when using loose posts are the actions of inscription, erection and the marking of boundaries.  By contrast, a standing stump post must pose a quandary for the staker. To cut a tree to the requisite height of 1.2 metres and to square or face the sides to 10 centimetres is no more than what is done as prior preparation to the deemed “acceptable” loose posts.  Yet, by the very fact that the standing stump post is not chopped off its roots to form a loose post, its prior preparation has been construed by the mining recorder as an act of erecting the post.  He also argued that any unfair advantage was outweighed by the staker’s having needlessly erected line posts on a one unit claim.

Legislation

Those provisions of O.Reg. 7/96 thought relevant to this matter by the parties, as well as earlier and current legislation, are set out:

1.         “mining claim” means a parcel of land, including land under water, that has been staked and recorded in accordance with this Act and the regulations; R.S.O. 1990. c. M. 14

8.      (1) Revoked. 
         (2) A mining claim is staked by erecting a corner post at each of the four corners of the claim so that,
         (a) the No. 1 corner post is at the northeast corner;
         (b) the No. 2 corner post is at the southeast corner;
         (c) the No. 3 corner post is at the southwest corner; and
         (d) the No. 4 corner post is at the northwest corner.
         (4)  If there are standing trees on the perimeter of the area being staked, the perimeter of the mining claim must be clearly marked during staking by plainly          blazing the trees on two sides only in the direction of travel and by cutting the underbrush along the boundaries of the claim.

9.      (1)  A mining claim must be staked out under the direction of a recording licensee.
         (1.1)  In order to direct the staking of a mining claim under subsection (1), the recording licensee must be present in each area under staking for a mining claim          at the time the area is being staked for the purpose of recording the mining claim. O. Reg. 196/06
         (2)  The recording licensee must direct other licensees as well as non-licensees in constructing claim posts and marking the perimeter of a mining claim.

10.    (1) The following rules apply to the staking of a mining claim in areas that have been open for staking for 24 hours or more:
         1.  The staking may be started at any corner or line post.
         2.  Only the recording licensee or another licensee may erect, inscribe or affix a tag to a corner post, line post or witness post.
         3.  The date and time of completion of the staking must be inscribed on one of the corner posts after all of the required work of staking the claim has been          completed.

10.    (2) The following rules apply to the staking of a mining claim in areas that have been open for staking for less than 24 hours:
         1.  The staking must start at the northeast of the mining claim and proceed in a clockwise direction.
         2. Only the recording licensee may erect, inscribe or affix a tag to a corner post, line post or witness post.
         3.  The date and time of both the start and completion of the staking must be inscribed on the No. 1 corner post by the recording licensee. 

14.    (1) Every claim post used for staking a mining claim must
         (a) stand 1.2 metres above the ground when erected;
         (b) be squared or faced on four sides for thirty centimetres from the top; and
         (c) each side shall be ten centimetres across where squared or faced.
         (2) Only a post or a standing stump not previously used for staking a mining claim may be used as a claim post.
         (3) Commercial timber may be used for claim posts in areas where it is impracticable or undesirable to cut down trees.

15.    (1) A licensee staking a claim using metal tags, must affix to each corner post the appropriately numbered tag in accordance with subsection 8(2); and
         (b) shall inscribe on each corner post his or her name and licence number and the date and time of erecting the post.
         (2) A licensee staking a claim without using metal tags shall inscribe on each corner post,
         (a) the number of the post in accordance with subsection 8(2); and
         (b) shall inscribe on each corner post his or her name and license number and the date and time of erecting the post.

Mr. Mercer had submitted that ss. 8(2) of O. Reg 7/96, replaced cl. 47(1)(a) of the Mining Act R.S.O. 1980, c. 268, when in fact, O. Reg. 115/91 preceded the applicable regulation.  Nonetheless, both parties were in agreement that the applicable provision for the June 1, 2008, staking is ss. 8(2) of O.Reg. 7/96.

Mr. Mercer relied on s. 28 of the Mining Act, R.S.O. 1990, as amended, which establishes that a licensee may stake a claim:

“on any land open for prospecting and subject to the other provisions of this Act, may work such claim and transfer his or her interest therein to another person, but, where the surface rights in the land have been granted, sold, leased or located by the Crown, compensation must be made as provided by section 79.”

Mr. Rupert has placed before the tribunal the idea that any action required to erect a standing stump is an historic artefact and perhaps an absurdity.

To better understand the meaning of the provision, and also since Mr. Rupert raised their change and its interpretation as an issue, the tribunal has researched the history of the staking rules.   Mr. Mercer had objected to the expansion of provisions under consideration but nonetheless addressed them.

The staking rules were first put into regulation pursuant to provisions of the Mining Act, S.O. 1989, c. 62, effective June 3, 1991.

It will be seen that the wording governing the staking rules existed as early as 1908 and has been relatively unchanged until the move to regulation[2].

The point is that the rules around staking a claim had not substantively changed during those intervening 83 years, with the exception of eliminating the requirement for a discovery and discovery post in 1922 and the addition of the provision against reusing posts added in 1959. 

54.       (1)  A mining claim shall be staked out by:

(a) Planting or erecting upon an outcropping or showing of a mineral in place…upon which shall be written or placed the name of the licensee…, the letter and number of his license, the date of discovery, if the discovery is made on behalf of another licensee and in whose name the claim is to be staked out and recorded, also the name of such other licensee and the letter and number of his license;

(b) Planting or erecting a post at each of the four corners of the claim, marking that at the northeast corner “No. 1,”… so that the number shall be on the side of the post toward the post next following it in order named;

(c)  Writing or placing on the No. 1 post all the particulars required to be on the discovery post [i.e. particulars of licensee staking and for whom to be recorded], and also plainly marking thereon the distance and direction … [from the discovery post] …[and if in a township surveyed into lots], the part thereof comprised in the claim mentioning the lot and concession or section number;

(d)  Writing or place on the No. 2, No. 3 and No. 4 posts … the name of the licensee making the discovery and if the discovery is made on behalf of another licensee for and in whose name the claim is being staked out, also the name of such other licensee; and

(e)  Plainly blazing the trees on two sides only where there are standing trees and cutting the underbrush along the boundaries lines of the claim… or where there are no standing trees, clearly indicating the outlines of the claim, and marking a line from the No. 1 post to the discovery post by planting durable pickets, not less than five feet in height thereon at intervals of not more than two chains (132 feet) or by erecting at such intervals monuments of earth or rock not less than two feet in diameter at the base, and at least two feet high, so that the lines may be distinctly seen.

(2) Where at a corner of the claim … the … erecting of a post [is] impracticable, [a witness post may be used at the nearest practicable point to the corner, marked with “WP” and indicating the direction and distance of the true corner].

(3) Every post shall stand not less than four feet above the ground, and shall be squared or faced on four sides for at least one foot from the top, and each side shall measure at last four inches across where squared or faced, but a standing stump or tree may be used as a post if cut off and squared and faced to such height and size and when the survey is made the centre of the tree or stump where it enters the ground shall be taken as the point to or from which the measurements shall be made.  8 Edw. VII, c. 21, s. 54.

Up until the 1989 overhaul of the Mining Act, following industry wide consultation [“Ontario’s Mines and Minerals Policy and Legislation:  A Green Paper” (December 12, 1988), Ministry of Northern Development and Mines] the provision referred to by Mr. Mercer was essentially the same.  It is more fully reproduced:

47.       (1) A licensee shall stake out a mining claim,

(a) by planting or erecting a post at each of the four corners of the claim, beginning with and marking that at the northeast corner “No. 1”, that at the southeast corner “No. 2”, that at the southwest corner “No. 3” and that at the northwest corner “No. 4” so that the number is on the side of the post toward the post next following it in the order named;

(b) by writing or otherwise inscribing on  No. 1 post his name, the letter and number of his licence, the date and hour of the commencement of staking out  [and if in a surveyed township, lot, concession, section details];

(c) by writing or otherwise inscribing his name and the letter and number of his license on the No. 2, No.3 and No. 4 posts; and

(d) by plainly  blazing the trees on two sides only where there are standing trees, and cutting the underbrush along the boundary lines of the claim, or where there are not standing trees, clearly indicating the outlines of the claim by planting thereon durable pickets not less than 5 feet in height at intervals of not more than 2 chains (132 feet) or by erecting at such intervals monuments of earth or rock not less than 2 feet in diameter at the base and at least 2 feet high so that the lines may be distinctly seen.

(2) [Witness posts]

(3) Every post shall stand not less than four feet above the ground, and shall be squared or faced on four sides for at least one foot from the top, and each side shall measure at least four inches across where squared or faced, but a standing stump or tree may be used as a post, if cut off and squared and faced to such height and size and when the survey is made the centre of the tree stump where it enters the ground shall be taken as the point to or from which the measurements are made.

(4)  Every post shall be a post, standing stump or tree not before used as a post for a mining claim. S.O. 1980, c.62 s. 47

As pointed out by Mr. Rupert, it was this s. 47 wording, prior to moving the staking rules to regulation, upon which the Skead v. Parres decision was made.  The structure of the language reflects Commissioner Ferguson’s interpretation.  Subsection 1 uses the mandatory “shall” but it is also active – the licensee shall perform those mandatory actions to stake his claim.

In 1991, O. Reg. 115/91 was enacted. 

8.     (2)  A licensee shall stake out a mining claim by erecting a post at each of the four corners of the claim so that:

(4)  Where there are standing trees on the area being staked, the perimeter of the mining claim shall be clearly marked during staking by plainly blazing the trees on two sides only in the direction of travel and by cutting the underbrush along the boundary lines of the claim.

[(5) use of flagging tape for areas referred to in s. 32]

(6) Where there are no standing trees on the area being staked, the perimeter of the mining claim shall be clearly marked during staking by erecting durable pickets or monuments of earth or rock along the perimeter so that the boundary lines of the claim are clearly outlined. 

(7)  A licensee staking out a claim may use other persons to assist him or her in constructing posts and marking the perimeter of the claim.

(9)  If the area to be staked has been open to staking for less than twenty-four hours,
(a) the staking shall commence at the northeast corner … and proceed in a clockwise direction;
(b) a single licensee shall erect and inscribe all posts; and
(c) the date and time of commencement and completion of the staking shall be inscribed on the No. 1 post. 

12.       (1) Every claim post used for staking a mining claim shall stand 1.2 metres above the ground when erected and be squared or faced on four sides for thirty centimetres from the top and each side shall be ten centimetres across where squared or faced. 

(3)  Every claim post shall be a post or a standing stump not previously used as post for a mining claim.

13.       (1) A licensee staking a claim using metal tags,
(a) shall affix to each corner post…; and
(b) shall inscribe on each corner post….
(2) A licensee staking a claim without using metal tags shall inscribe on each corner post,

Some of the changes were necessary to accommodate those recommendations adopted from the Green Paper.  Staking of multiple units, completion time of staking governing priority of recording and greater flexibility in marking of boundaries are several examples.  This also represented a first attempt at the expansion of many newly created provisions.  These proved either unwieldy or lacking in sufficient detail.  As can be seen, they were fleshed out or provided their own section in O.Reg. 7/96 or both.  An example of this is the rule governing staking for lands open less than or more than 24 hours ending up with their own section.

Analysis

Evolution of Drafting Conventions – Legislation.

The analysis of the evolution of the staking rules come nearly 23 years after the rules were first moved to regulation.  It is not particularly timely that the stylistic changes only now give rise to questions of interpretation, given that soon ground staking will be a thing of the past.  The Province will soon proclaim ss. 38(2) of the Act and pass regulations for transition to and implementation of map staking of mining cells. 

While the focus of the case was on how a standing stump could be erected as a corner post within the meaning of ss. 8(2) of O.Reg. 7/96, commonly accepted principles of statutory interpretation articulated by Elmer Driedger at p. 87 of his Construction of Statutes, 2nd ed., (Toronto: 1983, Butterworth’s), used by all levels of courts when interpreting statutes, will also be relied upon.  The specific reference 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. 

Therefore, while Mr. Mercer objected to the introduction of other provisions of O.Reg. 7/96 having a bearing on the interpretation in this matter, he nonetheless addressed them thoroughly in his argument and has therefore had the opportunity to be heard.  Moreover, it is in keeping with the commonly accepted principle of statutory interpretation that it is the whole of the Mining Act or those portions which will shed further light on interpretation which must be examined to determine the meaning of what is being said by the legislature.

Taken in isolation, the departure from readily recognized drafting conventions is evidenced by the contrasting the two versions of ss. 8(2) found in the first and second version of the staking regulations:

8(2)      A licensee shall stake out a mining claim by erecting a post at each of the four corners of the claim so that… [O.Reg. 115/91].

8(2)      A mining claim is staked by erecting a corner post at each of the four corners so that,… [O.Reg. 7/96].

It is O. Reg. 7/96 which is applicable to this appeal.  The wording in this subsection  represents a shift from a subject (the licensee) being required (shall) to take certain action to an active third person requirement where the mining claim is the subject and the licensee carries out this requirement through the active third person. 

The original rule in s. 54 of the 1908 legislation also used the active third person requirement (“A mining claim shall be staked out by…”).  But ss. 54(1) contained pertinent information which is not found in ss. 8(2) – that information has been placed in a different locations throughout in the regulation.  The changes to the grammatical structure of this and other provisions is not in and of itself evidence nor determinative that the staking rules have changed. 

The tribunal was unable to find the use of the word “is” [in the applicable ss. 8(2)] in any of the drafting conventions in use today.  It does represent a shift away from the conventional style where most mandatory provisions use the word “shall” and permissive use of the word “may”.  This change in tone of drafting is not explained in any document upon which the tribunal could locate or upon which it can rely.  The tribunal could find no reference to conventions used by Ontario Legislative Counsel explaining what could be a move away from traditional drafting conventions to plain language, nor could it find an explanation of the rationale for the grammatical forms employed. 

The Uniform Law Conference of Canada last dealt with legislative drafting conventions in a 1991 publication.  The ULCC is an organization founded in 1918, whose legislative drafting arm is geared towards harmonizing the manner in which legislation is drafted throughout provincial, territorial and federal arenas.  While this is a very hopeful place to start in attempting to understand what has taken place in the change in the staking regulations, the fact that the uniform code sheds no light on the change in drafting between 1991 and 1996 is not helpful.  At best, ss. 30(1) suggests that ordinary language be used as much as possible. 

In all of the subsequent editions of Construction of Statutes, neither Sullivan nor Driedger deal with the word “is” as having some special statutory meaning.  There is no help to be gained from these sources. 

Therefore, the tribunal makes the following observations.  The original 1908 format which carried through to the 1989 version, held all of what were found by Deputy Commissioner Yurkow to be the essential elements of staking a mining claim in the first subsection.  From a purely structural point of view, there was a symmetry found in subsections 54(1) and 47(1), whereby all the essential elements of staking were covered. 

The mention of the standing stump post is not part of the essential elements but rather a conglomeration of a number of particulars. [see both subsections 54(3) and 47(3) of the legislative versions] The dimensions for all posts were specifically set out; height, size of squaring and facing; a standing stump or tree could be used for a post if cut to those specifications; any subsequent survey would be taken from the centre point of the stump where it entered the ground. 

There was a simplicity to this structure – all of the essential staking elements contained in one subsection; and for better or worse, all other characteristics, particulars and detail, being lumped into what followed.  Perhaps this latter information was excessive or even varied for one subsection and perhaps that is where the drafters of the two subsequent staking regulations found themselves challenged to express the intent of the legislators meaningfully and clearly.

The first regulation, O. Reg. 115/91, first and foremost, still retained the traditional staking conventions.  There was no question what had to be done and what remained optional or permissive. Use of the words “shall” and “may” continued, reflecting these readily understood drafting norms for interpretation. 

However, as can be seen from subsections 8(7) through (9), attempts were made to address how helpers to the primary staker would be regarded, and for the first time, rules were instituted for lands open for less than and more than 24 hours.  Despite 83 years of being bunched into a subsection with considerable other information, details concerning the dimensions of the posts now have their own subsection.  While some of the inscription details are found in those subsections of s. 8 dealing with lands open less or more than 24 hours, considerable detail for inscriptions and attachment of tags, where applicable, are found in their own section 13.

The second regulation, O. Reg. 7/96, has dispensed with conventional drafting conventions entirely insofar as “may” and “shall” are concerned. This section 8 is now limited to containing information for the locations of corner posts and methods for marking boundaries. 

Notwithstanding the use of “is” in ss. 8(2), the word “must” is found in sections relevant to general staking and staking during the first 24 hours.  See ss. 9(1), (1.1), (2); cl. 10(2)1; ss. 14(1).  The words “must” carry the same meaning as the former “shall”.  And one is not to be fooled by the use of the word “may”; where it has been used in conjunction with the word “only”, in either clauses 10(1)(2) or 10(2)(2), “Only the recording licensee may…” , taken together, those words are found to have no other meaning than “must” or “shall”. 

Dealing with the regulation under examination for this appeal, speaking both colloquially and in specific detail:  the recording licensee (staker) must direct the staking of his claim [ss. 9(1)]; the staker must be present during each area under staking [ss. 9(1.1)]; it is the staker who provides direction to any helpers, whether those persons are licensees or not, in constructing the claim posts and marking the boundaries [ss. 9(2)]; during the first 24 hours after opening, the staking must start at the northeast corner; [cl. 10(2)(1)]; the date and time of both start and completion must be inscribed on the No. 1 post by the staker [cl. 10(2)(3)]; every claim post must be 1.2 metres high when erected, may only be erected by the staker, be squared 30 cm from the top and 10 cm across [ss. 14(1)].  For lands open less than 24 hours, the recording licensee must do all inscribing and affixing as may be required [ss. 15(1)]; for those lands open more than 24 hours, a recording licensee is permitted to inscribe and affix as may be required [ss. 15(2)].

Construction of claim posts is introduced for the first time in the regulations, not having been mentioned in any of the staking rules between 1908 and 1989/91.  Its use appears permissively (“may”) in ss. 8(7) of O.Reg. 115/91 and emphatically (“must”) in ss. 9(2) of 7/96. Both are designed to outline more expansively just what a helper is permitted to do during the course of a staking, be the individual a licensee or not.  The tribunal finds that the wording used in both of these provisions does not add construction of claim posts as an essential element to staking a claim.  In the first, it is clarified that helpers are permitted to construct claim posts; in the latter it is further clarified that the actions of the helpers is to take place under the supervision and proximity of the recording licensee.  It is the need to introduce and emphasize the proximity of the recording licensee throughout section 9 which is of significance to this provision.

Essential Elements of Staking a Mining Claim

O.Reg. 7/96 is difficult to read from the perspective of determining what constitutes the essential elements of staking a mining claim.  There is nothing in the successive versions, however, which leads to a conclusion that these have changed over time.  It is unfortunate that the drafting has lost its elegance, symmetry and simplicity, not to mention, conventional language from a drafting convention perspective.  Although not directly on point, one cannot help but think of R. v. Popovic [1976] 2 S.C.R. 308, which examined the evolution of the burglary provision of the Criminal Code, dating back to 1892.  The circumstances of the applicable revisions there were completely different, but a parallel can be drawn to difficulty in discerning meaning when whomever is entrusted to draft revisions has not kept their “eye on the ball” and ensured that the underlying history was addressed.  In any revised statute or regulation, this careful attention to what went before is absolutely necessary to clarity moving forward. 

Subsection 8(2) deals with erection of 4 corner posts.  The tribunal finds these to remain essential, although they are not fully fleshed out in this section which, as stated above, is written from the active third person voice.  “Who” may erect the posts is found in subsections 10(1) and (2), specifying who may act during the first 24 hours after opening and thereafter.  Subsection 8(2) must be read in conjunction with either subsections 10(1) or 10(2). 

Taken together, ss. 8(2) and ss. 10(1) make an essential element of staking the erection (and note, “planting” was eliminated in 1991; “erecting” is taken to mean having a degree of permanence) of the corner post after 24 hours at any required post, be it corner or line post; the recording licensee or another licensee may erect the post, do the inscriptions and affix the tags, where used; the date and time of completion [priority of staking which may present itself much later at the PRO in overlapping stakings] on one of the posts. 

Similarly, together ss. 8(2) and ss. 10(2) make an essential element of staking during the first 24 hours, that it is the #1 post/corner which is erected first and only by the recording licensee from which he or she will proceed in a clockwise direction; only the recording licensee may erect, inscribe and affix tags, where used and the times of starting and completion are inscribed on the #1 corner post by the recording licensee.   This last phrase may be redundant as cl. 10(2)(2) has already stated that it is only that person who may make inscriptions.

In yet another unusual drafting manoeuver, the inscriptions and affixing of tags is more fully fleshed out in section 15.  The wording in clauses 15(1)(a) and (2)(a) ties directly back in to ss. 8(2), using the words, “in accordance with subsection 8(2)” in both cases. 

There is no point in providing any further comment as to whether this breaking up of essential elements serves purposes of clarity or any other purpose.  Should opportunity arise to make submissions on this point, the tribunal would welcome the assistance.  Beyond that, there may be times when nothing is achieved through making legislation more readily understandable by making it more difficult to interpret. 

Are there other essential elements to staking a mining claim added in 1996? 

As stated, section 9 of O. Reg. 7/96 provides that, while helpers may assist in the construction of posts or demarcation of those boundaries, the recording licensee must be present in the area under staking.  It is the recording licensee who will direct all activity in the field.  It means that the helpers must be located in the immediate vicinity to take that direction.  Use of the word “must” in ss. 9(2) further refines the meaning of ss. 9(1).  The claim is staked under the direction of the recording licensee; to the extent that those helpers, be they licensees or otherwise, construct posts or mark boundaries, their activities must be under that direction.  They are not acting on their own.

So, is the construction of a corner post an essential element of a mining claim?  In fact, it is not.  It is its erection (understood to be shortened from the earlier wording used being either one of planted or erected).  This means something that has a degree of permanence.

Erection of a Standing Stump

There is nothing in either the 1991 or the 1996 version which assists with understanding what constitutes an erection of a standing stump.  To find that meaning, one must rely on the case law which has already decided this issue.

Essential Elements of Staking

The essential elements of staking a mining claim have not changed.  In the context of this appeal, through argument on behalf of the appellant, it is made to appear that the requirement that a standing stump post be erected is an absurdity. The question for determination is not how does one erect a standing stump post?  The question, rather, is what essential staking elements can exist at that moment which falls immediately prior to the lands coming open for staking?  The answer must be that none can exist. 

All essential elements must be carried out after the lands come open for staking.  Construction of loose posts has, for reasons which will be set out below, never been considered an essential element of staking.  It is only when they are erected or planted (the loss of which in the drafting is unfortunate), that this one essential element of staking has been undertaken and completed.

The problem with the standing stump post is that, if it is constructed prior to the lands coming open for staking, it can only be characterized as a post which is erect at the exact moment the lands come open.   It really doesn’t matter that it is hewn from a tree which was for the term of its existence, erect.  What matters only is that its character has changed at the exact moment the lands come open for staking.  Since its construction took place prior to the lands coming open for staking, it is deemed to have been erected as a corner post at the time of its construction. 

In the case of a standing stump post, once its construction has been completed, it is deemed to be erected.  Construction of a claim post is not normally  an essential element  of staking, but there is no other way to erect a standing stump post than to actually build or construct the post.  If this is done prior to lands coming open for staking, it constitutes commencement of staking prior to lands coming open.

The creation of claim posts for corners is not specifically addressed as an essential element of staking.   In Parres v. Skead, the Deputy Commissioner eloquently summed up three “basic” elements as found in what was s. 47, effective to June 2, 1991, as the erection of posts, inscription of posts and blazing of lines.

Prior to 1991, the verb to construct was never mentioned in relation to claim posts.  This is not due, as has been suggested, to a growing tolerance for pre-staking activities including the construction of claim posts.  Rather, in law, these posts did not form part of a mining claim under staking until they were used as such.  Their ownership was retained by the owner of the surface rights. 

In Meunier v. Larche, (1979), 5 M.C.C. 485, Commissioner Ferguson provided this legal perspective on the treatment of loose posts up until the moment they were planted or erected and inscribed.  Until erected, those loose posts were regarded as continuing to belong to the land upon which they had grown or were found.  The Meunier case involved the prior preparation of one post and it was completely prepared, up to readiness for planting or erecting and inscribing with or without tags.  The loose post was cut the requisite length and it was squared and faced as required by the legislation.  What distinguished it from a corner post of a mining claim was that it had been neither planted nor inscribed. 

At page 487, Commissioner Ferguson stated that “prior to [the lands coming open for staking] Larche attended at the site and cut and prepared a post on land to the east, leaving the post near the location at which he proposed to commence his staking and in a depression covered with boards.”   No inscriptions were made at the time of cutting.  An opposing staker found the post, actively claimed the post by making an inscription to that effect with the time noted.  This was done ostensibly in an attempt to nullify the existence of the post as a potential corner post, by changing its character to that of a used post.  Re-use of previously used corner posts had been prohibited in the legislation since 1959. 

Commissioner Ferguson did not accept this position and stated at page 488: “At the time of the cutting of the post the ownership of the post would remain with the Crown or the private owner who owns the timber rights on the land from which it is cut and there is no reason to suggest that any type of title passes to the staker.”  He went on to comment that, by the competitive staker placing his initials on the post, its significance was no more than “a sad commentary on the morals of some members of the staking fraternity who it appears have no moral concern in assuming onto oneself the fruits of another’s labour.” 

This reasoning served to render the preparation of posts, whether prior to or during staking, outside of what are considered the essential acts of staking a claim.  Rather, the dimensions involved in the preparation of the post will go to its quality as a corner post and whether it will be found to be adequate for purposes of legislative compliance. 

Six years later, a standing stump post was prepared prior to the time the lands came open for staking in Comba et. al. v. St. Louis, (1985), 7 M.C.C. 88, which Mr. Mercer referred to in his submissions.

Commissioner Ferguson quoted clause 47(1)(a) and stated at page 95:

“It will be noted from the section that the planting or erecting of a post is the initial step in the staking process.  The complete preparation, except for inscriptions and the fixating of tags cannot constitute anything other than a “planting or erecting a post”.  In the view of the tribunal, although the tribunal has not struck down staking on the ground of the preparation of loose posts, which posts may be brought some considerable distance to the scene, the tribunal cannot accept the preparation of a stump post as the making of a directional marker within the meaning of the existing cases.  To do so would place the staker who adopts this practice in an unfair position over other stakers.  He would not have to plant or erect a post as part of his staking and in the view of the tribunal, the preparation of such posts constitutes the commencement of staking prior to the time the lands came open for staking.”

The reasoning in Comba v. St. Louis in 1985 deemed the construction of a standing stump post to be erection and planting of that post, an essential element of staking, following the determination in Meunier v. Larche that posts could be prepared right down to the squaring and facing ahead of the commencement of staking and not run afoul of the legislation. 

There was never an actual mention of the construction of posts in any of the staking rules until 1991 O.Reg. 115/91, when it was paired with blazing or marking of boundaries: 

“8(7)  A licensee staking out a claim may use other persons to assist him or her in constructing posts and marking the perimeter of the claim.” 

The wording undergoes a change in 7/96:

“9(2) The recording licensee must direct other licensees as well as non-licensees in constructing claim posts and marking the perimeter of a mining claim.”

Neither of these provisions serves to make construction of the posts an essential element of staking.  In the first regulation, assistance of others may be utilized.  In the second, if others construct the claim posts, they must do so under the direction of the recording licensee.  The provisions of section 9 in O.Reg. 7/96 provide for immediate proximity of the recording licensee, to be on the ground and directly involved in what is taking place.

Nowhere in the legislation prior to the move of staking rules to regulation is the construction of posts included as a consideration.  The inclusion of the verb construction, in both 1991 and 1996, did not make construction an essential element of staking but rather was used to delineate, in part, the roles of the helpers.  That role is more constrained under both regulations when dealing with the first 24 hours after lands come open for staking.

The rules did not deal with what constituted the tolerable limits of reconnaissance, prior preparation and directional markers but have left it to successive Commissioners to interpret the provisions as best they could under the circumstances.  Clearly, Commissioner Ferguson did so in Comba by essentially deeming the construction of a standing stump post as erection of that post.  This is nothing more or less than a determination of what essential staking elements can exist at the time lands come open for staking.  The answer is none. 

Substantial Compliance and Deemed Substantial Compliance

In his submissions, Mr. Mercer relied on this principle in asserting that there is a limited leniency granted by section 43, in that it cannot be construed so as to allow a staker to commence staking prior to the time the lands come open.  He submitted that there is no authority to support such an assertion.  [Racicot v. The Minister of Northern Development and Mines, (unreported); MA 012-97 and  MA 026-97, November 23, 1999 at page 12]. 

A stump post prepared ahead of the time the lands came open for staking constitutes staking activity prior to the lands coming open.  As a result, the decision of the mining recorder was correct and the tribunal should dismiss the appeal. 

Mr. Rupert submitted that to meet the rules of substantial compliance (or run afoul of them) one should meet one or all of the following substantive tests which apply to the staking of all claims, competitive or otherwise.  To be an act of substantial compliance it “patently” must be one which affects the substance of the claims staked going to physical size and shape, the effect of the markings displayed, or “the nature of the otherwise abstract title being claimed”.  To be in substantial compliance should not be thwarted over a trivial matter.  In his submission, use of a standing stump post prepared ahead of the time lands come open for staking constitutes a trivial matter. 

Mr. Rupert quoted from an unidentified tribunal decision [c.f. Ex. #2, p.7]:

“As the rules have now changed to make completion time of utmost importance, unfair advantages taken where it is not necessary to do so, must be taken to be a staking which cannot be either in substantial compliance or be deemed to be in substantial compliance with the requirements of the regulation.”

The decisions, according to Mr. Rupert, carry a rule that the staker must not be allowed to take short cuts which create unfair advantage in a competitive situation.  This must include such things that could be viewed as insignificant or minor technical “defaults” in staking or recording which nonetheless in the context of substantial or deemed substantial compliance must be considered sufficiently significant as to result in the cancelation or non-recording of a claim.   Whether these advantages occur during competitive staking or confer an unfair advantage in terms of completion time should be taken into account.  He submitted that the triviality of the legislative provision must be judged in the context of competitive advantage.

There is no competitive advantage in the Trudeau staking, and to the extent there may have been if it was offset by erecting unnecessary line posts, posts which were not required in staking a one unit claim. 

The quality of competition is not affected by the trivial prior preparation of the standing stump post.  Its existence does not mislead other stakers.  Good faith was exercised by the staker in attempting to mark out clear boundaries.  The staker was inexperienced in competitive situations. 

The legislation does not distinguish between loose and stump posts in preferential terms.  Only through the strict application of the law applied in this case by the mining recorder is there a requirement that a staker physically erect a post at the time the lands come open.  This completely ignores stump posts which are already standing.  Throughout, Mr. Rupert maintained that no unfair advantage could be seen to be gained by use of a standing stump post so that the Trudeau staking should be found to be in compliance with section 43. 

Mr. Rupert made an impassioned plea that there is nothing to be gained by throwing open these lands for staking, a situation which could lead to recurrence of similar deficiencies. 

Analysis

Section 43 provides for substantial compliance and deemed substantial compliance of staking where the legislative staking requirements are met according to circumstances in the field or if several requirements are not met so long as there is no likelihood that another will be misled in the field and that the staker has made an effort in good faith to comply with the requirements. 

Until 1991, the law in Ontario provided only for “substantial compliance”.  A whole body of case law grew up out of this. The vehicle was an application of the “real merits and substantial justice of the case” equitable provisions found in the predecessors to section 121.  In his book, Barry Barton, Canadian Law of Mining.  Calgary: Canadian Institute of Resources Law, 1993, provides an extensive analysis of the use and application of this provision, at pages 306 and 307. Barton makes reference to a thorough review of its application over time by Commissioner Ferguson in Martin v. Arrowsmith, (1974), 5 M.C.C. 115 at pages 130, 131 and 136 of the application of this provision.   He also refers to P.D. Lauwers, “Mining Claim Disputes in Ontario” (1986) 17 R.G.D. 723 (originally presented to the Prospectors and Developers Association Conference in March, 1986) wherein it is suggested: “The phrase ‘real merits’ relates to the appropriateness of a particular decision to the purpose and the object of the statute, which is to develop mines.  The phrase ‘substantial justice’ requires that the relative position of the parties be balanced.”

Since 1896, British Columbia has had in its legislation a provision which effectively stated that failure to comply with legislative provisions does not invalidate a staking or recording so long as there was an attempt to comply with the legislation and whatever failure to comply was not done with the intention of misleading others wishing to stake in the vicinity.

The case law in the two provinces, and other jurisdictions, has always been aware of the tension between inadvertent technical deficiencies in staking in juxtaposition to attempts of being given or attempting to create an unfair advantage. The 1989 changes to Ontario’s legislation served to bring the legislation more closely in alignment with the wording used in British Columbia:

43.   (1) Substantial compliance as nearly as circumstances will reasonably permit with the requirements of this Act and the regulations as to the staking out of mining claims is sufficient.
(2)  The staking out of a mining claim shall be deemed to be in substantial compliance with the requirements of this Act and the regulations even if there is a failure to comply with a number of specific staking requirements if,
(a) the failure to comply is not likely to mislead any licensee desiring to stake a claim in the vicinity; and
(b) it is apparent that an attempt has been made in good faith by the licensee to comply with the requirements of this Act and the regulations. R.S.O. 1990, c. M.14, s. 43 (2).

The extent of the forgiving provisions of subsection 43(2) [deemed substantial compliance] are not to be interpreted such that there is left little in staking that remains sacrosanct or amenable to remedy pursuant to an order pursuant to ss. 110(6).  The mining recorder picked up on this point at page 14 of his Order, wherein he states, “some staking rules are absolute and not open to interpretation.” 

This was succinctly addressed by Commissioner Ferguson in Meunier v. Larch at page 491:

“There is a distinction between the validity of the time of staking and the method of staking.  Matters relating to the former are associated with the principle of affording all licensees an equal opportunity of acquiring mining rights to Crown lands and the decisions requiring strict adherence to the time at which the lands came open for staking are based on the desirability of preserving such an opportunity.  Accordingly, the performance of any of the essential parts of staking prior to such time is crucial and staking has been held invalid where the planting of the No. 1 post is prior in time to the opening moment.  Similarly the other acts expressly required as part of staking fall within a similar principle and in my opinion the preinscription of a corner post would invalidate the staking.”

The matter of commencement of staking has never been addressed in the context of the pre-construction of a standing stump post.  In those cases where there had been commencement of staking activities prior to the lands coming open for staking, the circumstances were clear.  One example is Re Gass v. Ubald Desabrais (12 October, 1982, Quebec 161 – 211 (Que. M.J) where the word “must” in the English translation examined the required act that the staker must plant a stake.  The placement of stakes prior to the time the lands came open for staking was held to invalidate the staking even though they were not inscribed until the following day.  This was found to be in violation of the Quebec legislation.

In Whelan v. MacGregor, (1973) 5 M.C.C. 97, Commissioner Ferguson found that the erection of a (presumably loose) post prior to land coming open was invalid.  The facts in this case were rather convoluted due to the number of claims under consideration and somewhat difficult to discern for the reader.  The Commissioner was faced with conflicting evidence and facts.  However, the outcome at page 99 concerning the time of planting of the #1 post is clear, that it was erected prior to the lands having come open for staking.

Conclusions

This appeal will be dismissed.

The tribunal notes that the original staking over the subject lands was a competitive one however, the arguments against throwing the lands open for staking were not found to be persuasive.  Whether or not a case could be made under s. 121 and “the real merits and substantial justice of the case” remains for another day.  It is clear that this land was originally under competition.  Both stakers have failed in their bids to have their mining claims remain recorded.  It can follow only that they must be returned to the situation they found themselves in when these lands originally came open for staking.  Therefore, the Provincial Mining Recorder will be directed to rescind the Withdrawal Order for those lands covered by Rupert Filed Only Mining Claim 4243485 after the appeal period has expired, thereby reopening those lands for staking.

No costs will be awarded to either party.


1 S.O, 1994, c. 27, subsection 130, 134; S.O. 1996, C. 1 Sched. O; 1996, c. 30, s. 71; 1997, C. 19. S. 36; 1997, c 38, s. 1;S.O. 1997, c. 40, S.O. 1999, c. 12, Sched. O; S.O. 2000, c. 26, Sched. M., S.O. 2006, c.12, c.21, Sched. F, c. 33, Sched. R, C. 35, Sched.C;, S.O. 2007, c. 7, Sched. 22. 

2 The staking rules enacted in 1906 were sufficiently different in structure that this examination will omit them.