GUEST COLUMN (June 01, 1992)

Suppose for example the provincial government decided it wished to have a good selection of Emily Carr paintings in its provincial gallery and it passed legislation which permitted a committee appointed by Order-in-Council, to select and take these paintings from private hands and place them on display in a public gallery for public use. If the legislation were silent on the matter of compensation, the individuals who lost their paintings would be entitled to none. I think this cannot be the law.

If the Crown wishes to confiscate property it can do so by specifically providing that the property will be taken without compensation. The courts must presume that the legislature knows the law that if a statute is silent on the matter of compensations the court will presume that the legislature intended that compensation should be paid where property is expropriated. –Justice Frank Maczko, Nov. 22, 1991

That was the decision of the Supreme Court of British Columbia on the case of Cream Silver Mines (plaintiff) versus the province of British Columbia (defendant).

The Crown has now lost all three cases where companies or individuals have taken it to court for expropriating mineral titles included within the boundaries of a provincial park — the Tener case in Wells Grey Park and the Casamiro Resources and Cream Silver cases in Strathcona Park. The message has penetrated Victoria’s political and bureaucratic halls that the costs of compensation, both administratively (if continued in the same way) and in payments to claimholders, will be high. Further, the current government’s future costs in compensation while carrying out its policy of doubling park and wilderness areas to 12% would become intolerable. This attitude toward mineral titles was clearly expressed in a May 2 Time Colonist article where Glen Clark, minister of finance and corporate relations, was quoted to have said: “I personally reject the notion that those resources are owned by them and we have to compensate, but that’s something we’re reviewing.”

Bill 32, the Resource Compensation Interim Measures Act, was quickly tabled and passed after first reading. This Act puts on hold all compensation actions until June 15, 1993, unless the Lieutenant-Governor in Council decides otherwise. Intended to thwart several mining companies involved in the judicial process, the government appears to have also frustrated a host of other mining legal proceedings in which the Crown’s purse is not involved. The undermining of security of mineral title will lead to the destruction of British Columbia’s mining industry.

From a mineral exploration point of view, Bill 32 is the most draconian measure taken by a government in British Columbia since Bill 31, the infamous Mineral Royalties Act, was introduced by Premier Dave Barrett in February 1974. It reminds me of a section in George Orwell’s novel Animal Farm: the morning after the animals’ takeover of the farm, they notice the clause “But some animals are more equal than others” has been added to their original slogan, “All animals are created equal.” In British Columbia it’s “All businesses are created equal but some businesses are less equal than others.” The question before the government is either how to arrive at fair compensation or confiscation by specifically providing that the properties be taken without compensation. I hope the latter is not legally possible as about 70 years ago the federal government used its constitutional power of disallowance to strike down a similar snub of the judicial process, stating in the process that there was no circumstance — moral, equitable or legal — in justification of such legislation, and that the legislature could not constitute itself a court of appeal from the Supreme Court of Canada. — Jack Patterson is managing director of British Columbia & Yukon Chamber of Mines.