Big Peel payouts bogus boogie man: Berger

The Yukon government would have no legal obligation to compensate the Peel’s mineral claimholders if it accepted the final recommended land use plan, says lawyer Thomas Berger.

Implementing a land use plan with no surface access is not “defacto expropriation” of mining claims, the prominent B.C. lawyer says in a legal opinion prepared for the Yukon Conservation Society and CPAWS-Yukon.

Berger is representing the two groups and two Yukon First Nations in a suit against the Yukon government’s decision to open most of the Peel for industrial development.

Here is the executive summary of the 33-page Berger opinion:

We have considered whether, if the Final Recommended Plan (FRP) of the Peel Commission is implemented, the Government of Yukon (YG) would be obligated to compensate owners of mineral claims or other property interests within protected areas for economic loss resulting from restrictions on the use of their land.

This issue arises because of the provision in the FRP that surface access to existing mineral claims would not be permitted in protected areas (though access by air would be allowed).

It is vital to keep in mind that instituting a program of land use planning is not the same thing as expropriation. When a specific parcel of land is expropriated, the owner is entitled to be compensated under the Yukon Expropriation Act R.S.Y. 2002, c.81. But the implementation of a land use plan for the Peel Watershed would not constitute expropriation of anyone’s land or anyone’s mineral claim. Instead it is what the Supreme Court of Canada has described as “the broad assignment of land use.” Tener v. B.C. [1985] 1 S.C.R. 533. The Supreme Court in Tener compared land use planning to zoning. When your property is rezoned, you are not compensated. Everyone whose land is rezoned must live with what may well be a very serious limitation on the use of such land.

The Supreme Court has held in Canadian Pacific Railway v. Vancouver [2006] 1 S.C.R. 227 that, to amount to de facto expropriation, two conditions must be met:

1. The government must acquire a beneficial interest in the land in question. In the Yukon we are mainly concerned with the owners of mineral claims. In the case of the implementation of the Peel Commission’s FRP, YG acquires no beneficial interest in the mineral claims.

2. Removal of all reasonable uses of the land. Thus the economic value of the land to the owner of the mineral claim must be reduced to the point where it is of no real use for exploiting minerals. It could be argued this would be the outcome under the FRP, since there would be no access except by air.

Let me repeat: The law in Canada, as enunciated by the Supreme Court, is that both conditions must exist for there to be a de facto expropriation and thus a right to compensation. In this case there would be no acquisition by YG of a beneficial interest in any mineral claim or in any other property. So YG would have no legal obligation to pay compensation.