File No. MA 008-13

M. Orr
Deputy Mining and Lands Commissioner

Thursday, the 8th day of May, 2014.

THE MINING ACT

IN THE MATTER OF
Mining Claims P-4209355, situate in the Township of Benneweis, 3004844, 3014374, 3017666 to 3017668, both inclusive, 3011820, 3011854, 3018411, 3018437, 4203839, 4203852, 4227171, 4240907 and 4240908, situate in the Township of Chester, and 3017674 and 4203294, situate in the Township of Yeo, in the Porcupine Mining Division, recorded in the name of Sanatana Resources Inc. as to a 100% interest (hereinafter referred to as the "Sanatana Mining Claims");

AND IN THE MATTER OF
Easement rights for the construction of a tailings pipeline, a proposed power transmission line and a water course realignment, pursuant to section 175 of the Mining Act over the Sanatana Mining Claims, situate in the Townships of Benneweis, Chester and Yeo, in the Porcupine Mining Division, Surface Rights Only.

B E T W E E N:
TRELAWNEY MINING AND EXPLORATION INC.
Applicant
- and -

SANATANA RESOURCES INC.
Respondent

ORDER ON MOTION FOR DISMISSAL

WHEREAS THIS APPLICATION was received by this tribunal on the 25th day of April, 2013;

AND WHEREAS an Order To File documentation and an Amended Order To File documentation were issued by this tribunal on the 26th day of April, 2013 and on the 4th day of June, 2013, respectively;

AND WHEREAS Mr. Adam Chisholm, co-counsel for the respondent, filed a Motion Record with the tribunal and the applicant on the 9th day of January, 2014, requesting an Order for, among other requested relief, the dismissal of this application;

AND WHEREAS the tribunal determined that it should hear the Motion of Sanatana Resources Inc. only as it relates to the dismissal of the application prior to hearing of any other portions of the Motion or, the merits of this matter;

AND WHEREAS the Motion of Sanatana Resources Inc. was heard by the tribunal on the 11th day of March, 2014;

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

2.         IT IS FURTHER ORDERED that the applicant, Trelawney Mining and Exploration Inc., file two copies with the tribunal and serve one copy on the respondent, Sanatana Resources Inc., by no later than the 8th day of July, 2014, of:

  1. A clear and precise statement listing the rights the applicant is applying for. Each right is to be listed separately and the corresponding works or things for each right applied for are to be clearly listed.  In addition to the aforementioned statement listing the rights, a current statement of the status of the mine for which the rights are required.
  2. Definite and detailed plans and specifications for any proposed dams, transmission towers and any other works or things that Trelawney proposes to construct or have constructed or done. For example, where the easement pertains to the building of a dam, then plans and specifications for the dam are to be provided. The dam’s effect on watercourses is to be specified, with upstream and downstream impact specified as well with potential creation of floodplains delineated and drops in water levels indicated.
  3. An outline of the land or property being affected along with an outline of the owner or owners as far as they can be ascertained; and
  4. A map or plan of the locality showing the land and the water that is involved.

3.         IT IS FURTHER ORDERED that the respondent, Sanatana Resources Inc., file two copies with the tribunal and serve one copy on the applicant, Trelawney Mining and Exploration Inc., by no later than the 8th day of August, 2014, of their review of each of the rights listed in sub-order #2 above, including a description of any injuries or damage that may arise from granting the right and further, the compensation that would be claimed for such injury or damage.

4.        THIS TRIBUNAL FURTHER AUTHORIZES the applicant, Trelawney Mining and Exploration Inc. and any of its engineers, assistants or other employees to enter upon the lands of affected owners, including those of the respondent, to make such examinations and to take such measurements as may be necessary for the production of the information listed in and required by this Order.

5.        IT IS FURTHER ORDERED that no costs shall be awarded to either party pursuant to this Motion.

        DATED this 8th day of May, 2014.

Original signed by M. Orr

M. Orr
DEPUTY MINING AND LANDS COMMISSIONER

 

 

 

 

File No. MA 008-13

M. Orr
Deputy Mining and Lands Commissioner

Thursday, the 8th day of May, 2014.

THE MINING ACT

IN THE MATTER OF
Mining Claims P-4209355, situate in the Township of Benneweis, 3004844, 3014374, 3017666 to 3017668, both inclusive, 3011820, 3011854, 3018411, 3018437, 4203839, 4203852, 4227171, 4240907 and 4240908, situate in the Township of Chester, and 3017674 and 4203294, situate in the Township of Yeo, in the Porcupine Mining Division, recorded in the name of Sanatana Resources Inc. as to a 100% interest (hereinafter referred to as the "Sanatana Mining Claims");

AND IN THE MATTER OF
Easement rights for the construction of a tailings pipeline, a proposed power transmission line and a water course realignment, pursuant to section 175 of the Mining Act over the Sanatana Mining Claims, situate in the Townships of Benneweis, Chester and Yeo, in the Porcupine Mining Division, Surface Rights Only.

B E T W E E N:
TRELAWNEY MINING AND EXPLORATION INC.
Applicant
- and -

SANATANA RESOURCES INC.
Respondent

REASONS

Appearances:

Mr. Robert Wisner   –   co-counsel for the Respondent, Moving Party
Mr. Adam D.H. Chisholm   –   co-counsel for the Respondent, Moving Party

Mr. Neal J. Smitheman   –   co-counsel for the Applicant, Responding Party
Ms. Kimberley Potter   –   co-counsel for the Applicant, Responding Party

Introduction

The Issue

  1. Should the application filed by Trelawney Mining and Exploration Inc. (“Trelawney”) for certain rights under the Mining Act be dismissed before a hearing into the merits of the application is heard?
  2. If the answer is “yes”, does the Mining and Lands Commissioner (“Commissioner” or “tribunal”) have the jurisdiction to dismiss an application made under section 175 of the Mining Act before a hearing into the merits is held?

Background

A brief outline of events leading up to this motion hearing follows.

Section 175 of the Mining Act (the “Act”) (under the heading “Rights and Easements”), deals with those rights that may be conferred by the Mining and Lands Commissioner over other lands.    

Trelawney sent a four-page letter dated April 25, 2013, (by e-mail and received after 5:00 p.m.) describing an easement sought over certain mining claims held by Sanatana Resources Inc. (“Sanatana”).  Parts of subsection 175(1) of the Act were referenced in Trelawney’s letter.  Trelawney requested that the tribunal issue an Order To File documentation “forthwith”.  The Order to File was issued on April 26, 2013.

The parties exchanged documentation and then attempted to resolve matters through mediation in October of 2013, but were unsuccessful.  They discussed matters relating to a timetable and procedures for a hearing.  The parties were involved in arguing issues related to disclosure and further document requests.  Numerous e-mails were exchanged between the parties as well as between the parties and the Registrar of the tribunal.  The parties submitted a proposal regarding hearing dates and procedures to the Registrar – the intention being to obtain the tribunal’s approval. 

In November, 2013, the tribunal indicated that the proposed timetable and procedures were not satisfactory.  It explained that subsection 175(4) set out certain requirements and that until those requirements had been met, the Commissioner was unable to proceed with the application as it was filed.  Trelawney was asked in a follow-up email if the materials it had filed were intended to be in accordance with the requirements of subsection 175(4) and if so, could it identify the said documents and the requirement(s) they were intended to address.  Subsection 175(4), amongst other things, requires that “a clear and precise statement of the right or rights being applied for, of the land or property affected and the owner or owners thereof so far as they can be ascertained, a map or plan of the locality showing the land and water involved, and definite and detailed plans and specifications of the works or things proposed to be constructed or done ….”  Subsection 175(4) also requires that the aforementioned documents be filed in duplicate.  There was no response to the tribunal’s request to have Trelawney match documents it had already filed with the requirements of subsection 175(4).

Sanatana filed a notice of motion in January, 2014 seeking an order approving the previously proposed timetable; requiring Trelawney to deliver certain documents; and in the alternative, dismissal of Trelawney’s application for failure to comply with subsection 175(4) of the Act.  The tribunal indicated that it would hear argument regarding dismissal of the application as a preliminary issue.  Both parties filed documents relating to this preliminary issue.

The Arguments

Sanatana Submission

Sanatana drew attention to the fact that the Commissioner had noted that Trelawney had not filed detailed plans and specifications as required by the Act; that the Commissioner had provided Trelawney with an opportunity to address the deficiencies, but that Trelawney had not done so.  The application should be dismissed “in its entirety” – one of the reasons being that while the application was on-going, Sanatana’s rights were being affected, including its right to an expeditious hearing.

Sanatana focussed its argument on the wording of subsection 175(4) claiming that the applicant Trelawney had not met the requirements of the Act by not filing “definite and detailed plans”.  Sanatana pointed out that the wording of this subsection anticipated that an applicant would file something more than just a “short little description”.  Mr. Wisner drew attention to the phrase “definite and detailed plans and specifications of the works or things proposed to be constructed or done”.  When the legislation called for a “map”, it said “map”; when it talked about “works or things to be constructed”, it called for “detailed plans and specifications”.  The word “definite” meant that the plans and specifications would not change. (He pointed out that Trelawney’s documents used words like “preliminary” and “potential”).  The word “detailed” meant that the plans and specifications would show “exactly what is being built, how it will be built, and when it will be built”.  He gave the analogy of himself as a homeowner hiring a contractor to build an extension on to his house.  He would not be happy with only a map that showed a part of his backyard being dug up.  He would want to have final specifications that would depict how deep a hole would be dug in the ground, the height of the extension, expected start and completion dates. 

Mr. Wisner made reference to excerpts from some of the documents filed by Trelawney for its application and argued that they did not reflect the wording in the Act.  He argued that for example there was nothing to indicate “what will be built exactly, how the works will be built, when they will be built and how they will be maintained.”  Sanatana’s factum makes note of the fact that Trelawney has applied for more than one easement to transport tailings but that only one pipeline would be used initially and that the other would be “potentially” used later.  Sanatana had questions regarding the route for power transmission lines, the dimensions of the transmission towers, and the infrastructure that would be built in conjunction with Trelawney’s requested watercourse easements.  Sanatana also questioned the status of feasibility studies arguing that they did not yet exist and that this pointed to uncertainty for Trelawney’s plans.

Sanatana’s position is that Trelawney has not filed documentation that meets the requirements of subsection 175(4).  While Mr. Wisner alluded to the importance of subsection 175(1) which refers to the “proper working of a mine”, he indicated that his client was not arguing this point for purposes of the motion.  Subsection 175(1) did help the reader to understand that private property rights were being taken up and this led to the practice (by tribunals) of requiring a mineral developer to submit “detailed plans and diagrams”.  Subsection 175(7) requires that every order granting a right “shall” contain a proper description of the benefitting and affected lands “for purposes of registration”.  In addition, subsection 175(10) required the recorder or land registrar to enter particulars of the order against the titles of the lands affected.

In addition to making submissions regarding the completeness (or lack of same) of Trelawney’s application, Mr. Wisner argued that Sanatana had been seeking clarification and additional information from Trelawney (on more than one occasion) and that Trelawney had failed to provide it.  He pointed out that the Order To File was intended to supplement the statutory requirements of subsection 175(4).  He argued that Sanatana’s difficulties with Trelawney’s responses to the Order To File were indicative of Sanatana’s having to deal with a “moving target” as far as the nature of the materials was concerned. 

In referring to the wording in the legislation, Mr. Wisner submitted that the subsection expected all of the things it listed to be filed with the application.  A section 175 application does not contemplate a discovery process as being the means to obtaining such information.  The policy reason for this was that while a hearing is underway, the party affected by the application also has their property rights encumbered by the notice of pending proceedings under the Act.  Another policy reason for this is that a filing of materials related to the application before a hearing has the effect of streamlining the hearing process, making it more efficient. 

Mr. Wisner took the tribunal to Trelawney’s application materials and focussed on the request for three categories of easements.  He pointed out that in one instance, Trelawney was applying for two easements, but had indicated that only one may be required.  In terms of the things that would be built on the easements, (e.g., transmission lines), there was no indication as to the height of towers, their location, the timeline for building and so on.  He pointed out that the application’s treatment of the need for dams was lacking in information such as understanding the “blast radius” – blasting being needed to build the dams. 

Mr. Wisner’s submissions were centred on the phrase “detailed plans and specifications” and in his view, the Trelawney application failed to contain what Mr. Wisner argued the Act required.  The Act was clear.  And its requirements amounted to a “condition precedent” for an applicant.

He argued that the Trelawney application should be dismissed for failing to meet the statutory requirement set out in subsection 175(4), namely “definite and detailed plans and specifications of the things proposed to be constructed or done”.  It was within the power of the tribunal to therefore dismiss the application.  Clause 4.6(1)(c) of the Statutory Powers Procedure Act (“SPPA”) working in conjunction with subsection 4.6(7) gave the tribunal this power even in the face of what was set out in subsections 4.6(5) and (6) of the SPPA.  Subsection 175(4) of the Mining Act set out the kind of statutory requirements referred to under clause 4.6(1)(c) of the SPPA.  In fact, because the Mining Act and its subsection 175(4) already existed as a statutory requirement prior to 1999 (the year the SPPA was amended) then the tribunal has the power to summarily dismiss the Trelawney application.  In any event, notice had been provided to Trelawney and submissions were being made in this motion.  As for Trelawney’s argument that the tribunal’s procedural guidelines were deficient insofar as the SPPA was concerned (not having specific rules for ordering dismissal) and that this should indicate a lack of power to dismiss, Mr. Wisner submitted that this would lack common-sense.  What if the tribunal were faced with a frivolous, vexatious or matter commenced in bad faith?  Or what if the tribunal was faced with a matter dealing with issues that were clearly outside the jurisdiction of the tribunal?  According to Trelawney’s argument, the tribunal would not have the power to dismiss such a matter because it had not made the rules called for in section 25 of the SPPA.

Trelawney Submission

Trelawney claims that granting Sanatana’s motion would result in a denial of Trelawney’s right to natural justice and fairness, including the right to know the case it has to meet.  Mr. Smitheman began his submissions by saying that Sanatana’s motion amounted to a summary judgement motion and that Sanatana could not succeed without relying on evidence – and that there was none before the tribunal at this point.  In the alternative, even accepting the materials that Mr. Wisner had used in his submission, Mr. Smitheman submitted that what his client had provided with its application met the requirements of the Mining Act.  He made reference to the tribunal’s decision in 2274659 Ontario Inc. v. Canada Chrome Corporation (September 10, 2013, tribunal file MA 005-12, unreported) saying that the tribunal’s words regarding the chance that a proposed easement alignment might be subject to change supported Trelawney’s position.  (Sanatana had referred to this decision in its factum in support of its argument that it deserved to know “precisely how and where its claims will be affected”).

Mr. Smitheman also referred to the tribunal’s Order to File and argued that his client had filed the materials requested but that none of them had been accompanied by an affidavit.  As stated in the factum filed by Trelawney for this motion, “[t]here is not only insufficient evidence, but indeed no evidence at all, before the … Commissioner that the MLC could rely upon to dismiss Trelawney’s application outright at this preliminary stage.”  He pointed out that at that time the Order To File had not specified anything about construction or engineering drawings. He then made reference to the tribunal’s correspondence of November 15, 2013.  (This was referred to in the Background above). 

Mr. Smitheman expressed surprise at the tribunal’s correspondence of November 15, 2013, given the round of document exchanges and the mediation attempts that the parties had gone through.  He took the tribunal to the materials that had been filed by his client and submitted that what had been filed was specific enough for the Act and that contrary to what Mr. Wisner had argued, there was no need for construction or engineering drawings.  Trelawney had only to provide “sufficient materials so the respondent can respond promptly and fairly”. Mr. Smitheman was questioned by the tribunal as to its need for specificity to be able to grant an easement.  He agreed that more specificity could be required “if necessary at some point”.   He then went on to explain (using the materials that had been filed) that the tribunal did not need to know where a pipe within an easement was to go or where a transmission tower would be located in order to grant a pipeline or transmission line easement.  He distinguished this matter from the Cliffs matter (which Mr. Wisner had included in his materials but had not referred to in his oral submissions).  The tribunal had only to be apprised as to what land was needed for easements.  The tribunal also questioned him as to whether specificity was needed for the affected owner to be able to quantify a compensation amount so that the tribunal could make a decision (should it be warranted).  His response was “no”.  He spoke about parties accommodating each other under the Mining Act; the need for an impact to be felt on a party’s lands and whether a party’s exploration results were significant enough (presumably to justify a compensation claim); the accessibility problem faced by his client because its property was surrounded by Sanatana’s mining claims; its need for infrastructure, power and so on.  Accommodation was the key thing in all of this and if something arose after the easements were granted, then section 175 had provision to alter the original order, including one that dealt with compensation.  But the “pith and substance” of section 175 did not translate into his client having to produce engineering drawings at this point.  Engineering drawings accompany a feasibility study.  As Mr. Smitheman stated “… the purpose of 175 is that is there sufficient information so that the responding party can properly respond?  “… when one looks at all of the materials that have been filed, instead of looking at a specific provision and saying … where is the plan and specification, no plan and specification as a necessary condition, I don’t think so.  The whole purpose of 175 is there … enough information there to put all the materials together so that Sanatana can properly respond, and my answer is yes.”

Mr. Smitheman’s argument also centred on what he claimed to be a lack of properly admitted evidence before the tribunal on which to dismiss his client’s application.  In other words, there was no evidence addressing the issue of failure to file detailed plans and specifications.  The motion had come about through the actions of the tribunal in requesting detailed plans and specifications.  This had put Trelawney in a position of “consternation and difficulty” as it had no idea as to what it was expected to file. 

Mr. Smitheman took the tribunal through an argument based on his position that the documents being used to summarily dismiss his client’s application were not properly before the tribunal for purposes of this motion.  They were not attached to an affidavit or introduced through a witness (allowing for examination and cross-examination).  Simply filing documents does not make them evidence.  Otherwise the trier of fact would end up basing a decision on “speculation, mere allegations, hearsay evidence, [and] innuendo”.  As Trelawney’s factum stated, it would amount to a “legal error” to grant an order based on documents that were not properly before the tribunal.  Relying on them (without the benefit of testing their reliability in court) for purposes of the motion would impede the tribunal’s ability to get to the truth of their contents.     

Mr. Smitheman argued that the purpose of section 175 was to foster and encourage mining in the province.  Infrastructure is a part of the equation and section 175 provides equitable relief to those seeking to develop their mines.  This is evident in all of those things listed in the section. Sanatana was trying to sterilize his client’s property through its opposition to the application.  Sanatana’s documents did not describe what impact the easements would have on its property – it was their position that they would not be able to carry on their operations.  The need for specificity at this point was a “red herring”.  Also, Trelawney’s request for more than one easement (the potential that only one would be needed) was not something that should stand in the way of getting the hearing underway.  Sanatana had enough to go on in terms of understanding how its mining claims would be affected and the hearing could deal with any future or further questions on impact. 

Mr. Smitheman’s approach to interpretation of subsection 175(4) was that it should be interpreted “purposively” and that Sanatana’s strict construal no longer reflected the current state of the law.  Trelawney was required to file plans and specifications “that are sufficiently definite and detailed for Sanatana to be able to identify potential impacts on [its] claims and thereby respond to the application.”  Trelawney had filed the documents it intended to rely on at the hearing by way of the Order To File.  It had located the proposed easements and provided a description of the infrastructure it planned to have built.  A previous decision of this tribunal confirmed that the fact that an actual legal description did not accompany an application is not sufficient to defeat an application.       

Mr. Smitheman responded to Mr. Wisner’s argument dealing with the effect that having a notice of pending proceedings was having on his client by alerting the tribunal to section 64 of the Mining Act which allows for cancellation with the issuance of an order.  But he cautioned Mr. Wisner saying that once lifted his client would then have to deal with the Act’s need for assessment work.  

Mr. Smitheman also made reference to the Cliffs matter and the tribunal’s decision therein and distinguished it from this matter. 

Mr. Smitheman also answered the tribunal’s question regarding any need for approvals under other legislation and indicated that a decision granting an easement would be made subject to required permits and approvals. 

The role of the SPPA insofar as the issue of dismissal without a hearing was concerned was argued by Ms. Potter, co-counsel for Trelawney.  The tribunal lacked jurisdiction to dismiss the application without a hearing.  It had no rules in place (pursuant to section 25 of the SPPA); the Mining Act did not allow for dismissal or refusal to process.   Ms. Potter addressed Mr. Wisner’s submission that a lack of rules dealing with dismissal (without a hearing) was an oversight and that there was provision within the Mining Act itself that would allow for this action.  In her view, “the requirement that an applicant file definite and detailed plans cannot be interpreted to mean…that an application can be dismissed without a hearing.”

Staying with subsection 175(4), the tribunal had not provided reasons as to why the application could not be processed.  Specifically, the tribunal had not provided reasons as to why or how Trelawney had failed to satisfy the procedural requirement of subsection 175(4).  What did Trelawney have to provide to resume processing?  Ms. Potter also took the tribunal to those sections of the SPPA dealing with dismissal without a hearing and submitted that the tribunal’s procedural guidelines were deficient in that they did not incorporate rules pursuant to section 25 of the SPPA and contrary to what Mr. Wisner had argued, this fact could not be treated as an oversight or failure to “cut and paste”.  Nor does the SPPA allow for one to simply read new rules into one’s current set of rules in order to appease the Act.

Taking the tribunal to section 121 of the Mining Act, Ms. Potter argued that the words there meant that the Act intended for the tribunal to hold a hearing into such a matter as one arising under subsection 175(4).

In reply, Mr. Wisner advised the tribunal that this motion did not so much resemble a summary judgement motion (as Mr. Smitheman had argued) as it did perhaps a default judgement motion “where someone is noted in default the allegations in the pleadings are deemed to be true.”  He was arguing a preliminary procedural point that had to be satisfied before getting to consideration of the merits.  Another example was a motion that sought to have the matter dismissed on the grounds that the pleadings failed to disclose a cause of action or contain an admission against interest.  Trelawney had simply made statements and assuming them to be true, they had not satisfied the Mining Act

Also, subsection 175(4) contained an express statutory requirement and it should be interpreted in its grammatical and ordinary sense.  Further, there was a definite need for definite and detailed plans and specifications due to the fact that the two competing projects (Trelawney’s and Sanatana’s) were side by side and one company should not be prejudiced by its neighbour’s rushing to apply for easements and such.  The tribunal had the power to end the thing right now on the basis that the applicant started too early.

Mr. Wisner also clarified that his client had not come before the tribunal to argue that the tribunal lacked the jurisdiction to not process the application – his client was simply asking for dismissal. 

Mr. Wisner was accompanied by Mr. Chisholm who dealt with the SPPA aspects of their motion.  He focussed on the importance of the word “shall” in subsection 175(4).

Ms. Potter for Trelawney replied that subsection 175(4) did not satisfy the SPPA exemption found in clause 4.6(1)(c) that allows for a tribunal to dismiss a matter using a provision in other legislation.

Application of the Law and Findings

Section 175 of the Mining Act deals with certain rights that may be conferred by the Mining and Lands Commissioner (the “Commissioner”) under the Act.  The section provides an extensive list of rights that are recognized by the Act as being “required for or in connection with the proper working of a mine, mill for treating ore, quarry or oil or gas well”.  These rights can pertain to the right to discharge water, the right to collect and dam back water, to deposit tailings, and so on.  Subsection 175(2) states that as far as the rights listed in subsection 175(1) are concerned “[n]o such right shall be granted unless injury or damage caused to any other person thereby can be adequately compensated for and unless in all the circumstances it seems reasonable and fitting to grant the right ….”  Rights granted under this section run with the land and the order granting them is required to be filed in the Provincial Recording Office or a Land Registry Office depending on whether the lands are patented or not.  Every order must contain proper descriptions of the lands involved (those that benefit and those affected) that are sufficient for purposes of registration.

Subsection 175(4) calls for the filing of certain material together with an application for a right.  This subsection says:

In every application for such an order, the applicant, in addition to anything else required or directed, shall file in duplicate with the Commissioner a clear and precise statement of the right or rights being applied for, of the land or property affected and the owner or owners thereof so far as they can be ascertained, a map or plan of the locality showing the land and water involved, and definite and detailed plans and specifications of the works or things proposed to be constructed or done and, for the purpose of preparing the same, the Commissioner may authorize the applicant, and the applicant’s engineers and assistants to enter upon the land or any other person and make such examinations and measurements as may be necessary, and such statement, map or plan and plans and specifications may, by order, be amended or altered or modified at any stage of the proceedings and the Commissioner may give directions as to the notice to be given to the parties interested, the time and manner of service and the particulars to be furnished to such parties respectively.”

Trelawney’s letter dated April 25, 2013 (which formed its application) was received by the tribunal after 5 p.m. and an Order To File was issued forthwith (April 26, 2013) at the applicant’s request.  Some time was spent by the parties trying to work out a settlement through mediation.  This obviously took some time and the parties were not successful.  The parties were also engaged in discussions relating to the sufficiency of the information that had been filed – Sanatana essentially complaining that the information was not adequate, and Trelawney taking the opposite position.  Both sides became embroiled in the issue of sufficiency and eventually decided that they would request that a hearing be called.

The tribunal’s attempt to ensure that it has the requisite documentation before it for the hearing is not the equivalent of a threat to dismiss the matter. Tribunals have always been able to inform themselves of the case before them even to the point of providing a statement of preliminary findings.   Section 175 of the Mining Act has the effect of granting rights (where merited) that run with the land and that must be capable of being registered in accordance with the Registry Act.  The tribunal is expected to comply with the statutory requirements, including the need to have a proper land description contained in any order made pursuant to section 175.  This is set out in subsection 175(7) of the Mining Act.  The tribunal is therefore fully within its procedural rights to call for an applicant to provide it with the documents the applicant will need to comply with the Mining Act and allow the tribunal to be able to reach an informed decision.  The documents required by subsection 175(4) are intended to give the tribunal the information it will use to make its decision.  In the past, the tribunal has required not a legal description but a survey that can be translated into a legal description.  The decision in Howes (referenced below) is a useful example.

The tribunal agrees with Mr. Wisner’s view that the wording in subsection 175(4) is clear, especially in light of the fact that the final “product” of a hearing is an order that contains a description that describes both the benefitting lands and the affected lands (sufficient for purposes of registration).  The registration being referred to is registration in a land registry office.  The description must be capable of being registered under the Registry Act.  Section 175 expects the order to contain such a description whether the lands are patented or not, as it also anticipates that the lands may be patented or leased in the future and so calls on the Minister to forward a copy of a certified order to the proper Land Registry Office.  As Mr. Wisner’s excerpt from “Canadian Mining Law” pointed out, potentially transferable property rights are being created when the tribunal orders the granting of easements under section 175 of the Mining Act.  Also, it is still a rule of statutory interpretation that where property rights are concerned, and where there is the possibility that rights can be encroached upon, that the law be construed strictly.  To that end, the tribunal sees no difficulty in requesting that the applicant provide surveys for the requested easements.

However, the tribunal does not agree that a failure to file all the documents required by subsection 175(4) at the time an application is made should result in automatic dismissal of the application.  The wording would have to be absolutely clear to allow for such a draconian result.  Furthermore, subsection 175(4) is but one component of section 175.  Mr. Wisner made a point of not getting into argument dealing with the existence of a mine.  Yet, as the decision in Howes indicates, the status of the applicant’s mine is something that the tribunal does take into consideration.  Section 175 has a number of components which must relate to the respondent’s interest in adjacent lands and they each form an integral part of the tribunal’s decision as to whether the requested right should be granted.

As for the information that goes into making an informed decision, the Mining Act does expect when someone applies for one or more of the rights listed in section 175, they fully and accurately describe the works and things that go with the right or seek the right to obtain it.  This includes information related to understanding of how the right is required for the proper working of a mine.  It can be a laborious process to comply with that expectation and the parties may become bogged down in litigious issues as they seem to have done here.  The tribunal is prepared to assist the parties in this matter to make the process as efficient as possible – for example through a case conference.  Having stated that, the tribunal is equally prepared to ensure that the process does not become hamstrung by either party.

The parties’ arguments regarding the Order To File are of little value in this matter.  The Order To File is intended to get the parties into a state of readiness for a hearing.  They are required to produce and exchange all of the documentation they intend to rely on prior to the actual hearing and the end result should be that all those involved can move forward without being unfairly surprised.  While the filed material may not be evidence (not having been proved), it does allow each side to know and understand the case they have to meet.  A failure to comply may result in costs being awarded.  It may also be an indicator of a party’s preparation efforts. 

The Order To File cannot supplant the requirements set out in section 175 of the Act.  They must be fulfilled even if there was no Order To File.

Contrary to some of the comments made by counsel at the hearing, the tribunal has not refused to process the Trelawney application.  Indeed, the application was accepted by the tribunal, an Order To File was issued and the matter made the subject of attempted mediation.  There has been a stoppage in the process by the tribunal.  The tribunal is well within its rights to inform itself of the documents and matters that eventually coalesce into a hearing as long as it has not closed its mind to the information and submissions that will be coming in the hearing.  The tribunal is of the view that it can review the filed documentation (including Trelawney’s letter of April 25, 2013) without determining the merits of the application.

Given the wording in subsection 175(4) and the obligation to attach a description to the tribunal’s order that can be registered in a registry office, it also does not make any sense that the tribunal would agree to proceed with an actual hearing without the necessary information in hand as a preliminary step in the process.  This would lead to time and money being wasted by all concerned.  In other words, the applicant has what was described as a “burden” to produce information that can form the basis for a section 175 order.  Contrary to what Mr. Smitheman for Trelawney has argued, it is not acceptable to expect the tribunal to wait for the required information to possibly appear during the course of the hearing (through questions by the parties or the tribunal).  Again, referring to the legislation, the tribunal is expected to hold a hearing dealing with such matters as how the right is required for or in connection with the proper working of a mine, potential injury or damage, compensation, the protection of land, property, rights and interests.  It cannot do this in a vacuum and it is tantamount to abusing the tribunal’s process to expect the tribunal to hope that the applicant will come up with the necessary information during the course of the hearing.  For example, if the requested right is related to the building of a dam, then actual specifications regarding the type of dam, its dimensions, its water holding capacity, the effect it will have on current water levels, upstream and downstream impact and so on should be produced.  The creation of new floodplains (the applicant has indicated this may occur) must be accurately depicted.

As well, if a right is being required “in connection with the proper working of a mine”, then information is needed with respect to that connection.  For example, where the requested right is one having to do with the deposit of waste products, then the tribunal expects to be provided with such details as the type of waste, the amount of waste, and confirmation that the waste is not injurious to life or health. The parties have already indicated that the status of a mine for the purpose of granting the rights set out in section 175 will be an issue.  The tribunal is aware of the issue and has decided that information related to the exact status of the mine is to be provided sooner rather than later.  

Reading subsection 175(4) or any part of section 175 in such a way as to allow an applicant to divulge information on an as needed basis or only after being ordered to do so is contrary to the wording and intent of section 175.  The rights that can be applied for are recognized by the Mining Act as being necessary in certain circumstances; however, in applying for them, the Act expects the applicant to produce everything necessary for the Commissioner to make an informed decision without having to hunt the information down or hope that one of the parties will reveal it through cross-examination for example. 

As well, the owner of potentially affected lands should not only be able to participate in a knowledgeable way by knowing what exactly is being planned on his or her lands but in also being able to provide the tribunal and the applicant with information regarding any claims for compensation.  Subsection 175(2) makes the issue of “adequate compensation” an important test in the granting of a section 175 “right”.

The tribunal is of the view that Trelawney is hesitant to provide the information either because it does not yet exist or because it fears divulging something that might be used by Sanatana to its advantage.  Mr. Smitheman made reference to the fact that Trelawney’s mining claims were surrounded by those of Sanatana and that Trelawney was looking to the use of easements to give it access to its proposed mine.  Be that as it may, Trelawney is still obligated to produce what subsection 175(4) calls for at the time it makes its application and not at a later date.

Nor should there be any surprise to what the subsection requires to be produced.  The applicant is the most informed of anyone as to what its plans are and as to the works or things that will go to see those plans realized. 

Both parties have expressed their wish for a hearing.  At the same time, they have become bogged down in arguing about what should or can be disclosed to each other.  The tribunal’s interpretation of section 175 should work to eradicate much of the evidentiary disputes the parties seem to be having and to put the application back on the proverbial rails. 

The tribunal will therefore order Trelawney to produce and file with the tribunal and serve on Sanatana Resources Inc. each of the items set out below, namely:

The tribunal realizes that Trelawney may require some time to prepare the materials as set out above; however, the tribunal is of the view that a two-month time frame is adequate given that much time has already passed. 

The tribunal will also order Sanatana to review the listed items and provide the tribunal with information that will assist in assessing any compensation claims that Sanatana intends to make.  To this end, Sanatana will be required to address each of the rights in the aforementioned list and describe any injury or damage that may arise out of granting the right and the compensation that would be claimed for such injury or damage.  If Sanatana is unable to arrive at a compensation figure, then it will be required to explain its inability to do so.

The aforementioned list of requirements is to be treated as being separate and apart from any filings that have been made by the parties in response to the tribunal’s earlier Order To File.  The filing of the information set out in this list and the list for Sanatana may necessitate the parties’ reassessment of the materials that have been filed in response to the Order To File.  They can request that the tribunal issue an amended Order To File should that be considered necessary.   Once the filing of all materials has been completed by the parties, the tribunal can be spoken to with respect to setting a hearing date.

The tribunal authorizes Trelawney Mining and Exploration Inc., its engineers and assistants to enter upon the land of affected owners including those of the respondent to make such examinations and measurements as may be necessary to produce the information listed above.

Given that Trelawney is seeking rights that will cross Sanatana’s mining claims, the tribunal is also interested in knowing whether any of the rights being applied for by Trelawney could also benefit Sanatana in any way.  The tribunal expects both parties to address this question once the hearing gets underway.

Conclusions

The interpretation of section 175 in general and subsection 175(4) in particular that serves the purpose and intent of the Act is one that necessitates the filing of all those documents required by the subsection at the time the application is made and not at some later date.  While there may be amendments to an order made under section 175, this does not obviate that necessity.  The tribunal is well within its rights to ensure that the required documentation is filed before a hearing gets underway.  It can and should review file materials to satisfy itself that an efficient hearing process will be carried out.  Parties owning lands that may be affected by an applicant’s plans should be apprised of those plans in order to allow them to inform the tribunal of any injuries or damage that may result in a claim for compensation.  Section 175 does not contain within it the wording that would allow the tribunal to dismiss an application for failure to produce the required information.  In any event, the tribunal did not indicate that it was considering dismissal but instead, indicated that it was not prepared to hold a hearing without the required documentation before it. The tribunal is not precluded from considering other remedies where an applicant refuses to comply with the requirements of section 175.

Costs

There will be no costs awarded to either Party.

Administrative Law in Canada, Sara Blake, 5th edition, LexisNexis, at page 117.

Howes v. Estate of M.E. Manderson et al.  5 M.C.C. 348