The holder of a number of placer mining leases (“Klippert”) appealed a chambers judge’s finding that the Gold Commissioner had jurisdiction to amend his leases for the various areas of land. The chambers judge had found that the Gold Commissioner had jurisdiction under the Mineral Tenure Act to adjust the area of the leases granted, reducing the lease area, but that he had done so without adhering to the requirements of procedural fairness and natural justice. The Court of Appeal allowed the appeal and declared the revisionary provisos to be beyond the jurisdiction of the Gold Commissioner.

Administrative law – Judicial review – Natural resources – Mining leases – Gold Commissioner – Jurisdiction – Powers under legislation – Procedural fairness – Natural justice

Klippert v. British Columbia (Gold Commissioner), [2003] B.C.J. No. 2186, British Columbia Court of Appeal, September 23, 2003, Newbury, Huddard and Saunders JJ.A.

Klippert had acquired various leases of land for mining purposes. The Gold Commissioner later purported to modify, by giving notice to Klippert, the area of two of his leases, on the basis that Ms. Braga, who challenged the leases after they were granted, had “probably correctly positioned the legal posts of PML 1321”. The question on appeal was whether the Gold Commissioner had jurisdiction to place a proviso in the lease he issued which permitted him to modify the area after granting the lease. The court held that although it had long been recognized that the mineral title system in British Columbia placed the Crown in a position different from its usual position as landlord, in that the recorder of title, the Gold Commissioner, became a mandatary of the statute, that individual could still not give the exclusive right to the same interest in land to more than one party at a time. The statutory framework for hard rock and placer mining was held to be consistent with this principle, recognizing that the first in time, in a mandatary system, takes the ground.

The court considered whether the Mineral Tenure Act, R.S.B.C.1996, c.292 permitted the Gold Commissioner, in response to a regulation silent as to a reservation for leases obtained without a legal survey, impose such a term in a lease.

The court stated at paragraph 38:

In the context of this case, the question is whether the Act indicates an intention that terms of a placer lease may be prescribed only by regulation and not by fiat of the Gold Commissioner. In my view, it does. I have reached this conclusion on a consideration of the words of the Act, and the context, historical and objective, of the relevant provisions.

The court noted that the Mineral Tenure Act did not expressly provide for the inclusion of a term to modify the lease, nor did the regulation provide for such a term. The court also observed that a system of boundary revision is not consistent with past experience in the regulation of placer mining where court adjudication of such issues historically has been the model. The court also noted that the Act, where empowering an official to resolve disputes or impose conditions, assigns that power to the Chief Gold Commissioner and not a Gold Commissioner. In this sense, the actions taken by the Gold Commissioner were seen to be anomalous and inconsistent with the scheme of the Mineral Tenure Act.

The court concluded that the Gold Commissioner was not given the authority under the Act to require the proviso in issue as a term of the lease, even if for the salutary purpose of resolving a problem created by a gap in the legislative framework. The court noted that although Klippert signed the lease and may be argued to have agreed to the proviso, here the Gold Commissioner lacked authority to issue a provisional lease and the term was ultra vires. The Gold Commissioner did not have the authority to issue less than a lease certain. The court held that Klippert was entitled to his lease and whether there was recourse to a person aggrieved by that lease was not clear on the materials and should be left to another day. The appeal as it related to both lease PML 367716 and 375481 was allowed with the parties being given leave to make further submissions on the second of these leases, and with the first lease being held to remain in full force and effect with the proviso removed.

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