Easement rights should not be granted in the case of 2274659 Ontario Inc. v Canada Chrome Corporation based upon reasoning within the following topics relevant to the case;
- Priority of Rights: "First-Come" Basis
- Intended Use For Staking a Mining Claim
- Scope: A Section 51 Hearing
- The Multiple Use Principle
- Infringement of the Rights Holder
Part Two: Intended Use For Staking a Mining Claim
The Mining Act states that the lease of mining rights and, where applicable, surface rights, can only be used for mining purposes. [s.85] However, staked claims are to be used as “mining land” or for another purpose of the “mineral industry.” [s.54 (1)]
Canada Chrome's recorded intent is to use these contiguous staked mining claims for multiple purposes specific to the “mineral industry” and has followed all mineral claim provisions of the Mining Act to pursue possible claim to lease;
- To complete a $15 million engineering survey and soil testing programs to locate and then construct a requisite mine railroad to transport a precious mineral, chromium, from a mine deposit located in the Ring of Fire to a southern market distribution point at Exton, Ontario. The MNDM has confirmed acceptance for filing $7.5 million of geotechnical data as assessment work completed on the claims constituting the transportation corridor. Without the use of the land on these staked mining claims for an ore transport corridor, the proposed chromite deposits remain uneconomic to develop. The transport route is considered essential for it's mining purposes.
- Locate and secure scarce local consolidated aggregate required for railway embankments. The mine transportation route choices are extremely limited by topography, as the swamps and marsh lowlands of the James Bay largely surround the mine area.
- Debut Diamonds, CCC's sister company, uses it's geochemical analysis of the nearly 6,000 soil samples from 811 borings recovered at 500 meter intervals along the entire length of the CCC claims to examine Kimberlite Indicators Minerals, (KIM's) to help identify distant diamond mineral deposit types. Debut holds 85 unpatented mining claims consisting of 436 total active claim units along the proposed mine railway ore transport corridor.
On August 10, 2012, the Ontario’s Ministry of Northern Development and Mines, MNDM, advised Noront Resources in writing that Ontario was in early stage discussions with Cliffs Natural Resources regarding it's intent to contribute financially to develop a north – south all-season private industrial ore haul road, subject to various environmental, regulatory and financial approvals, that would connect the Ring of Fire to existing provincial infrastructure. The MNDM wrote that their "current expectation was that the all-season road would be made available for use by industrial users other than Cliffs, with access fees generally based on proportional road usage, although specific terms are still to be determined.”
Cliffs Natural Resources also proposes to use chromite concentrate transport trucks which exceed the maximum allowable Canadian gross vehicle weight on public roads and therefore these trucks are restricted to operation on private property only. Neither the applicant nor the Ministry of Natural Resources can successfully argue that Canada Chrome intends to use these contiguous staked mining claims for purposes "other than" for mining purposes. For how could that be, since the applicant also proposes to use these very same claims for the purpose of the mineral industry, the use of a vital private road to haul chromite concentrate mineralization to market?
Further, the Ministry of Natural Resources, in it's "ARA Guiding Principles policy no. A.R. 5.00.06" on Mining Act, Claims and Leases, gives an example of an allowable intention for staking a mining claim (subject to the provisions of the Mining Act) which does not necessarily include the recovery of minerals beneath it's boundaries yet can be defined as for the purpose of the “mineral industry.”, i.e., temporary " Minerals are all naturally occurring metallic and some non-metallic minerals while aggregate includes gravel, sand, clay, earth, but does not include metallic ores.
(ARA Guiding Principles policy no. A.R. 5.00.06)
Once the easement proceedings have concluded, Canada Chrome Corporation will re-file applications according to Aggregate Resources Provincial Standards with the Ministry of Natural Resources (MNR) for aggregate permits at sites that are located within the mineral claims covering the company’s 308 kilometre-long railroad right-of-way.
Under subsection 175 (1) of the Mining Act, where required for or in connection with the proper working of a mine, the Commissioner may make an order that gives an owner of a mining claim a variety of rights; rights of way or passage through or over any land or water, and the right to construct, improve, maintain and use suitable roads, tramways, aerial tramways, channels, waterways, passages and other means of transit and transportation upon, through or over any land or water, together with such other rights of entry upon and use of land and water as may be necessary or convenient therefor; [s.175(f)] Surface rights may be sold or granted to a mining operation if the surface rights are necessary for the carrying out of mining operations. The Minister will determine the scope of the surface right so granted. [s.39(2)].
In January, 2012, the MNR advised Cliffs that it would have to obtain the consent of Canadian Chromite to any disposition “to enable MNR to grant an easement over [the] lands”, as holders of the affected unpatented mining claims. Also, the Office of the Provincial Mining Recorder, of the Ministry of Northern Development and Mines (MNDM) was notified concerning the application to “ensure the priority to the surface rights for this application under the Public Lands Act, subject to any existing rights (e.g. unpatented mining claims in good standing).”
Since this case is a referral by the Minister of Northern Development and Mines to the OLMC tribunal pursuant to subsection 51(4) of the Mining Act, of an application under the Public Lands Act, the understanding of the scope of a section 51 hearing is necessary.
Part One: Priority of Rights: "First-Come" Basis
An underlying principle in both the Mining Act and Aggregate Resource Act is that rights, patents, leases, licences or other instruments of title are granted on a "first-come priority" basis.
Except where the Mining Act otherwise expressly provides, section 63 states that the "priority of recording" prevails. In subsection 44.(2), regarding the staking of claims, it is the "priority of completion of staking" that prevails. Under the surface rights compensation subsection 79.(8), the Commissioner "shall take into account which of the rights was applied for first and, except where injustice would result, shall give the holder of those rights due priority in the consideration of the dispute between the parties."
In subsection 28.(3) of the Mining Act, an application accepted under the Public Lands Act or any other Act, the application shall have priority over any mining claim staked "during" the time that the application is pending. However, in the easement case of "2274659 Ontario Inc. v Canada Chrome Corporation", the respondent's unpatented mining claims were recorded "before" the Crown's Order No. W-TB-172/11, dated January 17, 2012, which withdrew all surface and mining rights to make way for the applicant's Transload Facility and Transportation Corridor. Canada Chrome Corporation's staked mining claims take priority over the Crown's application for withdrawal.
Non-observance of this fundamental "first-come priority" principle by the tribunal would allow the Crown to effect an expropriation from a minority joint-venturer, the respondent, in order to prefer the exclusive interest of the majority joint-venturer, the applicant."
Further, under the Aggregate Resources Act, the right to consolidated aggregate is granted on a first-come priority basis (i.e. "receipt" or "acceptance" by the MNR of an aggregate permit application vs. staked mining claim). It is a question of timing as to which instrument takes precedence. (ARA Guiding Principles policy no. A.R. 5.00.06) The respondent's staked mining claims were registered previous to the Ministry of Natural Resource's "receipt" or "acceptance" date of the Cliffs Natural Resource's applications for aggregate permits along the Transportation Corridor, should the area covered by the aggregate permit applications and mining claims overlap.
If a mining claim is staked and/or recorded before an application for an aggregate permit or licence is received for the same land, then an aggregate permit will be issued only to the recorded holder(s). The former instrument, CCC's staked mining claims, have priority in the consideration for aggregate right permits by the MNR under the Aggregate Resource Act.