An appeal pursuant to section 40(8) of the Mineral Tenure Act was allowed as the court found that the Chief Gold Commissioner erred in finding that there had not been a good faith attempt by the Appellant to comply with the staking requirements of the Act with respect to his mining claim and the Appellant’s non-compliance did not have a tendency to mislead

Administrative law – Natural resources – Mining leases – Gold Commissioner – Staking requirements – Judicial review – Administrative decisions – Appeals – Compliance with legislation

Tyerman v. Kreft, [2004] B.C.J. No. 1016, British Columbia Supreme Court, May 19, 2004, E.R.A. Edwards J.

The Appellant brought an appeal pursuant to section 40(8) of the Mineral Tenure Act, R.S.B.C.1996, c. 292 from the Order of the Chief Gold Commissioner (the “Commissioner”) which cancelled his mining claim. The Commissioner found that the requirements under the Mineral Tenure Act Regulation for two legal posts to locate such a claim had not been complied with. The Commissioner went on to find that the Appellant’s failure to firmly affix the initial post did not demonstrate a good faith attempt at full compliance and therefore the Appellant’s non-compliance was not saved by section 39 of the Act which states that a failure to fully comply with the Regulations in locating may not invalidate a claim if the locator of the claim attempted in good faith to comply and the failings were not likely to mislead other free miners.

On appeal, the court held that the Appellant had to show that the decision of the Commissioner was clearly wrong.

The Court held that there was evidence from which the Commissioner could infer the initial post was not firmly affixed to the ground and he therefore made no error of law when he concluded that the initial post did not meet the definition of a “legal post”. With respect to section 39 of the Act, the court held that the claim could be saved under that section if compliance with other requirements made the claim otherwise well defined and a permitted quick and accurate determination of its location. The court noted that neither the inspector nor the Commissioner found any other instances of non-compliance and the inspector had no difficulty in locating the initial post, the blazing or the final post. These factors led to the conclusion that the claim was otherwise well defined, despite non-compliance with the requirement to firmly affix the initial post to the ground. The court held that the Commissioner was clearly wrong to infer from the fact of non-compliance with the requirement to firmly affix the initial post that there had not been a good faith attempt by the Appellant to comply with staking requirements and that the non-compliance had a tendency to mislead. The fact that the claim could be readily and accurately located and that no one was misled made such inferences impossible. The appeal was therefore allowed.

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