EDITORIAL PAGE (January 13, 1992)

Over the years we have found it is impossible to predict the outcome of any legal action. The workings of Canada’s courts are a mystery, the secrets of which are not fully known even by the society of lawyers and judges who earn their livelihood by them.

We uninitiated might think that a sensible court decision should end a dispute. But when it comes to the courts, there are always some new wrinkles. That is why we must assume there is some valid reason why the government of British Columbia is appealing the province’s Supreme Court decision regarding Cream Silver Mines, though we fail to see it.

Late in 1991 Justice Frank Maczko ruled that the province had expropriated the company’s mineral claims by changing the classification of Strathcona Park within which the company’s claims lie. The change meant that further exploration work could not be carried out and, ultimately, that the company could not exploit the deposit.

In his decision, Maczko relied on the authority of both the Supreme Court of Canada and the British Columbia Court of Appeal, among other authorities, in cases involving similar complaints to those made by Cream Silver: “The Crown permitted and encouraged investment and exploration in mining,” he stated. “The company raised public money, invested it in exploration and found something of value. The Crown has taken that value away and deprived (Cream) of any opportunity to capture a return on its investment.”

The province’s appeal may be based on the fact that Cream Silver was exploring on mineral claims while other similar cases have dealt with exploration on a Crown Grant, but that logic is simply grasping at straws. If an appeal were successful on those grounds, it might satisfy the letter of the law, but it would certainly violate the spirit of the law. Maczko put it this way: “In my view the distinction the Crown seeks to draw between a Crown Grant and mineral claims is a distinction without a difference. The substance of what was expropriated is exactly the same.” The court’s ruling smacks of common sense, and that perhaps is what is prompting this appeal. Doubtless, the legal fraternity would prefer this issue proceed to the very highest court rather than have it solved in such a relatively simple fashion.