A-181-90
M. A. Fish in his capacity as the Mining Recorder,
Whitehorse Mining District and Minister of Indian
& Northern Affairs (Appellants) (Respondents)
v.
Laurence B. Halferdahl (Respondent) (Applicant)
INDEXED AS.' MALFERDANL V. CANADA (MINING RECORDER,
WHITEHORSE MINING DISTRICT) (CA.)
Court of Appeal, Heald, Hugessen and Stone
JJ.A.—Vancouver, December 11, 1991; Ottawa, Jan-
uary 27, 1992.
Construction of statutes — Yukon Quartz Mining Act, s.
13(1) — Other excepting language in subsection suggesting
"or other like reservations" signifying lands which may be
reserved required by Government of Canada for present or
future use, not present use only — "Like" indicating reserva
tion should possess common characteristic of being required
for public purpose — Order in council withdrawing lands from
disposal under Territorial Lands Act to facilitate settlement of
native land claims within s. 13(1) — Although not reserved as
"Indian reserve ", stated purpose similar as lands reserved will
be for Indians if part of final settlement of existing land claims
— Order quashing mining recorder's refusal to record claims
set aside.
This was an appeal from an order quashing the mining
recorder's refusal to record claims which had been staked
along the Burwash Creek in the Yukon Territory and manda-
mus requiring him to record those claims if they met the
requirements of the Yukon Quartz Mining Act. The Territorial
Lands Act, paragraph 19(a) permits the Governor in Council to
order the withdrawal of any territorial lands from disposal
under that Act. The Yukon Placer Mining Act, subsection 93(1)
permits the Governor in Council to prohibit entry to locate a
claim onto land required for a public purpose. Paragraph
17(2)(d) provides that the right of an individual to do what he
is entitled to do pursuant to subsection (1) may be restricted in
the case of "lands ... set apart and appropriated by the Gover
nor in Council for any purpose described in paragraph 19(d) of
the Territorial Lands Act". The Yukon Quartz Mining Act, sec
tion 12 permits any adult to prospect on any vacant land in the
Territory. Section 13 excepts Indian reserves, national parks
and defence, "or other like reservations made by the Govern
ment of Canada". There is no parallel provision to paragraph
17(2)(d). To facilitate the settlement of native land claims, the
Governor in Council adopted an order in council pursuant to
the Territorial Lands Act, paragraph 19(a) withdrawing the
tracts of land in question from disposal under the Act. The
Motions Judge held that since subsection 3(3) of the Territorial
Lands Act provides that nothing in this Act shall limit the oper
ation of the Yukon Quartz Mining Act or the Yukon Placer Min
ing Act, the order in council could not prevent the recording of
the applicant's claims. Otherwise the Territorial Lands Act and
its order in council would limit the operation of the Yukon
Quartz Mining Act. Collier J. found it significant that the
Yukon Placer Mining Act was tied in to the Territorial Lands
Act, but the Yukon Quartz Mining Act was not. The issues were
(I) whether Territorial Lands Act, subsection 3(3) limits the
operation of the Yukon Quartz Mining Act and (2) the meaning
of "or other like reservations made by the Government of
Canada".
Indian councils, given leave to intervene upon this appeal,
argued that Parliament was constitutionally barred from
empowering the mining recorder to alienate an interest in land
that might be needed in settling Indian land claims in the
Yukon Territory. Both the appellants and respondent opposed
this submission on the basis that the record was inadequate for
the Court of Appeal to deal with such constitutional issue.
Held, the appeal should be allowed.
No opinion should be expressed on the constitutional issue
as the appeal could be decided on a narrow point of statutory
construction.
The absence of an express power to prohibit by regulation
entry upon land for the purpose of locating a claim in Yukon
Quartz Mining Act, subsection 13(1) is of no consequence
given the wording of subsection 3(3) of the Territorial Lands
Act that "Nothing in this Act shall be construed as limiting the
operation of the Yukon Quartz Mining Act". If the limitation in
the order in council is of a kind contemplated by Yukon Quartz
Mining Act subsection 13(1), it is that Act and not the Territo
rial Lands Act which imposes the limitation. That the Yukon
Quartz Mining Act is not tied in with the Territorial Lands Act
would not be significant in the circumstances.
Although it was hard to understand what Parliament meant
by the words "or other like reservations", use of other except
ing language earlier in the subsection suggests that the lands
are in immediate use or occupation or are for a future use. The
descriptions "Indian reserves" and "national parks" indicate
existing use. But "defence" and "quarantine" are not necessa-
rily so restricted, especially as they are separated by the con
junctive "and" from the first two categories. The words "or
other like reservations" thus signify that the lands which may
be reserved are required by the Government of Canada for a
purpose that involves either a present or future use rather than
a present use only. "Like" indicates that the reservation should
be comparable with one or more of those expressly mentioned
in that it possesses the common characteristic of being required
by the Government of Canada for a broadly stated public pur
pose. The reservation made in the order in council falls within
the language of subsection 13(1) in that the lands reserved are
for a broad public purpose, i.e. "to facilitate the settlement of
native land claims". Although the reservation is not as an
Indian reserve, the stated purpose is similar in that the lands
reserved will be for Indians in the event they should become
part of a final settlement of existing land claims.
Incidentally, a Territorial Lands Act, paragraph 19(a) "with-
drawal" of lands from disposal is qualitatively different from
lands which the Governor in Council may "set apart and
appropriate" pursuant to paragraph 19(d) for the purpose of
fulfilling treaty obligations and for any other purpose condu
cive to the welfare of Indians. A withdrawal of "territorial
lands" must be for some stated purpose—in this case to make
them available to facilitate the settlement of native land claims.
The power to set apart and appropriate "areas or lands" pursu
ant to paragraph 19(d) appears to be broader, perhaps because
the affected lands are not restricted to territorial lands. Also,
although the Territorial Lands Act does not expressly authorize
the Governor in Council to prevent the recording of mineral
claims under the Yukon Quartz Mining Act, a withdrawal of
lands from disposal pursuant to paragraph 19(a) has the effect
of frustrating the mining recorder's authority under the latter
statute to record mineral claims.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Prohibition of Entry on Certain Lands Order, 1986, No. 1,
SOR186-l139, s. 2.
Territorial Lands Act, R.S.C. 1970, c. T-6, ss. 2, 3(3),
I 9(a),(d).
Withdrawal of Certain Lands from Disposal Order, 1986,
No. 1, SI/86-220, s. 2.
Yukon Placer Mining Act, R.S.C. 1970, c. Y-3, ss.
17(1),(2)(d) (as am. by R.S.C. 1970 (1st Supp.), c. 49,
s. 1), 93(1) (as enacted idem, s. 3).
Yukon Quartz Mining Act, R.S.C. 1970, c. Y-4, ss. 12 (as
am. by S.C. 1984, c. 10, s. 1), 13, 49.
CASES JUDICIALLY CONSIDERED
REVERSED:
Halferdahl v. Whitehorse Mining District (Mining
Recorder) et al. (1990), 31 F.T.R. 303 (F.C.T.D.).
CONSIDERED:
Rex v. Loxdale (1758), 1 Burr. 445; 97 E.R. 394 (K.B.).
COUNSEL:
John R. Haig, Q.C. for appellants (respondents).
W. S. Berardino, Q.C. and David C. Harris for
respondent (applicant).
Thomas R. Berger and S. Walsh for intervenor.
SOLICITORS:
Deputy Attorney General of Canada for appel
lants (respondents).
Russell & Dumoulin, Vancouver, for respondent
(applicant).
Thomas R. Berger, Vancouver, for intervenor.
The following are the reasons for judgment ren
dered in English by
STONE J.A.: This appeal is from an order of the
Trial Division [(1990), 31 F.T.R. 303] made in a pro
ceeding brought pursuant to section 18 of the Federal
Court Act [R.S.C., 1985, c. F-7]. That proceeding
arose out of a refusal of the mining recorder
appointed under the Yukon Quartz Mining Act, R.S.C.
1970, c. Y-4 to record 80 quartz mineral claims
which had been staked by the respondent along the
Burwash Creek in the southwestern portion of the
Yukon Territory. The Trial Division granted relief in
the nature of certiorari by quashing the mining
recorder's decision and relief in the nature of manda-
mus requiring the mining recorder to record these
mineral claims if the applications to do so meet the
requirements of that statute.
The intervenors, the Kluane Tribal Council and the
Council of Yukon Indians, were given leave to inter
vene in this appeal by order made by this Court on
January 30, 1991. Since 1973, the Government of
Canada and the Council of Yukon Indians have been
negotiating a comprehensive land claim. In those
negotiations, the parties agreed on the need to pre
serve the value of lands which might eventually be
granted to the Yukon Indians in a final settlement
and, to that end, to prevent further encumbrances on
certain lands which might be chosen by the Yukon
Indians as part of such a settlement.
Two issues are raised on this appeal. The first is
asserted by the appellants with the support of the
intervenors and is that the Motions Judge erred in
construing the relevant statutory provisions as not
prohibiting the mining recorder from recording the
respondent's mineral claims. The other is asserted by
the intervenors as an alternative. It is that Parliament
is constitutionally barred from empowering any offi
cial, including the mining recorder, from making any
alienation of land or interest in land that may be
required to enable the Government of Canada to fulfil
its duty to settle Indian land claims in accordance
with certain "equitable principles" in what is now the
Yukon Territory, and that we should declare the rele
vant legislation unconstitutional in so far as it pur
ports to do so. The appellants and the respondent
alike object to this argument being advanced at this
stage on the basis, generally, that the state of the
record does not allow the Court to know all the rele
vant facts of an historical nature that may have a
bearing on the constitutional issue.
As I am content to decide the case on the narrow
point of statutory construction, I prefer to express no
opinion on the constitutional issue.
In order to fully appreciate the issue of statutory
construction and its treatment by the learned Motions
Judge, attention must be paid to the relevant provi
sions of the three federal statutes and of a federal
order in council which were before him. The statu
tory provisions appear in paragraph 19(a) of the Ter
ritorial Lands Act, R.S.C. 1970, c. T-6, subsection
93(1) [as enacted by R.S.C. 1970 (1st Supp.), c. 49, s.
3] of the Yukon Placer Mining Act, R.S.C. 1970, c. Y
3 and in section 12 [as am. by S.C. 1984, c. 10, s. 1]
and subsection 13(1) of the Yukon Quartz Mining Act.
They read as follows:
Territorial Lands Act
19. The Governor in Council may
(a) upon setting forth the reasons for withdrawal in the
order, order the withdrawal of any tract or tracts of territo
rial lands from disposal under this Act;
Yukon Placer Mining Act
93. (1) Whenever in the opinion of the Governor in Council
any land in the Territory is required for a harbour, airfield,
road, bridge or other public work or for a national park, his
toric site, town site or other public purpose, he may by order
prohibit entry on such land for the purpose of locating a claim
or prospecting for gold or other precious minerals or stones
except on such terms and conditions as he may prescribe.
Yukon Quartz Mining Act
12. Any individual eighteen years of age or over may enter,
locate, prospect and mine for minerals on
(a) any vacant territorial lands in the Territory; and
(b) any lands in the Territory in respect of which the right to
enter, prospect and mine for minerals is reserved to the
Crown.
13. (1) There shall be excepted from the provisions of sec
tion 12 any land occupied by any building, and any land falling
within the curtilage of any dwelling-house, and any land valua
ble for water-power purposes, or for the time being actually
under cultivation, unless with the written consent of the owner,
lessee or locatee or of the person in whom the legal estate
therein is vested, and any land on which any church or ceme
tery is situated, and any land lawfully occupied for mining pur
poses, and also Indian reserves, national parks and defence,
quarantine, or other like reservations made by the Government
of Canada, except as provided by section 14.
Section 2 of the Territorial Lands Act defines "ter-
ritorial lands" as meaning "lands in the ... Yukon
Territory that are vested in the Crown or of which the
Government of Canada has power to dispose" and
that same section defines "land" as including "mines,
minerals, easements, servitudes and all other interests
in real property". This definition appears to include
an interest such as that of the holder of a mineral
claim which, prior to the issue of a lease, is, by virtue
of section 49 of the Yukon Quartz Mining Act,
"deemed to be a chattel interest, equivalent to a lease
of the minerals in or under the land". A "mineral
claim" is, by the definition contained in section 2, "a
plot of ground staked out and acquired under the pro
visions of this Act" or under earlier adopted regula
tions or orders in council.
The provisions of subsection 3(3) and paragraph
19(d) of the Territorial Lands Act, and paragraph
17(2)(d) of the Yukon Placer Mining Act [as am. by
R.S.C. 1970 (1st Supp.), c. 49, s. 1] were also relied
upon in argument. By this latter paragraph, the right
of an individual to do what he is entitled to do pursu
ant to subsection 17(1) of the Yukon Placer Mining
Act may be restricted in the case of "lands ... set
apart and appropriated by the Governor in Council
for any purpose described in paragraph 19(d) of the
Territorial Lands Act". While parallel provisions do
not appear in the Yukon Quartz Mining Act, the appel
lants and the intervenors contend that none were
required because the closing words of subsection
13(1) of that Act in fact envision government action
by order in council including that which is authorized
under section 19 of the Territorial Lands Act.
I should deal here with two incidental points which
were raised in argument on the construction of the
Territorial Lands Act. First, I view a paragraph 19(a)
"withdrawal" of lands from disposal as qualitatively
different from lands which the Governor in Council
may "set apart and appropriate" pursuant to para
graph 19(d) for the purpose of fulfilling treaty obliga
tions and for any other purpose conducive to the wel
fare of the Indians. A withdrawal of "territorial
lands" must be for some stated purpose; in the pre
sent case, for example, to make them available to
facilitate the settlement of native land claims. The
power to set apart and appropriate "areas or lands"
pursuant to paragraph 19(d), on the other hand,
appears to be broader still, perhaps because the
affected lands are not restricted to "territorial lands".
Secondly, although the Territorial Lands Act does not
expressly authorize the Governor in Council to pre
vent the recording of mineral claims under the Yukon
Quartz Mining Act, it seems to me that a withdrawal
of lands from disposal pursuant to paragraph 19(a)
has the effect of frustrating the mining recorder's
authority under the latter statute to record mineral
claims and thereby prevents him from doing so.
Two orders in council, P.C. 1986-2764 [With-
drawal of Certain Lands front Disposal Order, 1986,
No. 1, SI/86-220] and P.C. 1986-2796 [Prohibition of
Entry on Certain Lands Order, 1986, No. 1, SOR/86-
1139], were adopted on December 11, 1986. The
operative portions of order in council P.C. 1986-
2764, made pursuant to paragraph 19(a) of the Terri
torial Lands Act, read:
2. Pursuant to paragraph 19(a) of the Territorial Lands Act,
for the reason that the tracts of territorial lands described in the
schedule are required to facilitate the settlement of native land
claims, the said tracts, including all mines and minerals,
whether solid, liquid or gaseous, but excluding sand and gravel
that may be disposed of pursuant to the Territorial Quarrying
Regulations, are, subject to section 3, hereby withdrawn from
disposal under the Territorial Lands Act for the period termi
nating on May 31, 1988 without prejudice to the holders of
(a) recorded mineral claims in good standing under the
Yukon Quartz Mining Act and the Yukon Placer Mining Act;
(b) permits, special renewal permits and leases in good
standing under the Canada Oil and Gas Land Regulations;
(c) existing interests granted pursuant to the Canada Oil and
Gas Act;
(d) leases and agreements for sale in good standing under
the Territorial Lands Regulations; and
(e) other surface rights in good standing granted under sec
tion 4 of the Territorial Lands Act.
Order in council P.C. 1986-2796, adopted pursuant to
section 93 of the Yukon Placer Mining Act, reads in
part:
2. Pursuant to section 93 of the Yukon Placer Mining Act, for
the reason that the lands described in the schedule are required
to facilitate the settlement of native land claims, entry on the
said lands for the purpose of locating a claim or prospecting
for gold or other precious minerals or stones is hereby prohib
ited for the period terminating on May 31, 1988.
It was common ground that order in council P.C.
1986-2796 is not relevant to the issue of statutory
construction.
In granting the relief sought by the respondent, the
learned Motions Judge stated, at pages 307-308 of his
reasons for order:
First, it is clear from ss. 3(3) of the Territorial Lands Act
that nothing occurring under that statute should have an effect
on the Yukon Quartz Mining Act or the Yukon Placer Min
ing Act. Section 3(3) of the Territorial Lands Act provides:
"(3) Nothing in this Act shall be construed as limiting the
operation of the Yukon Quartz Mining Act, the Yukon
Placer Mining Act, the Dominion Water Power Act or the
National Parks Act."
Order-in-Council 1986-2764 cannot then prevent the applicant
from having his claims recorded. To hold otherwise would
allow the Territorial Lands Act and its Order-in-Council to
limit the operation of the Yukon Quartz Mining Act.
To my mind, an "other like reservation", for the purpose of
ss. 13(1) of the Yukon Quartz Mining Act, would require a
regulation made directly under that subsection. That is the way
s. 93 of the Yukon Placer Mining Act functions, as evidenced
by Order-in-Council 1986-2796.
Furthermore, a comparison of s. 13(1) of the Yukon Quartz
Mining Act and ss. 17(2) of the Yukon Placer Mining Act
shows the Territorial Lands Act can have an effect on the lat
ter, but not on the former. A reading of the two sections dem
onstrates the Yukon Placer Mining Act is tied in to the Terri
torial Lands Act. The Yukon Quartz Mining Act is not so
connected.
Counsel for the respondents argued I should construe the
three Acts here to form a whole. Therefore, it was said, a reser
vation created under the Territorial Lands Act would operate
as a reservation for the Yukon Quartz Mining Act. I do not
accept that submission. If parliament intended to have all three
statutes operationally similar, it could have expressly done so.
It has done exactly that, in ss. 17(2) of the Yukon Placer Min
ing Act. It has not done so in the Yukon Quartz Mining Act.
The respondents contended the words in Order-in-Council
1986-2764, "without prejudice to the holders of ... recorded
mineral claims in good standing under the Yukon Quartz
Mining Act and the Yukon Placer Mining Act", implied that
further claims under those statutes would not be accepted after
the date of the Order-in-Council. I do not accept that submis
sion. The effect of the quoted words is to allay fears of those
who have recorded claims. It also indicates a recognition the
Territorial Lands Act, and its Order-in-Council, do not cir
cumscribe the operation of the other statutes.
For all these reasons, I conclude the reservation made pursu
ant to the Territorial Lands Act does not prevent registration
of a mining claim under the Yukon Quartz Mining Act.
Order-in-Council 1986-2764 cannot serve as a basis for refus
ing to record the applicant's claims.
The appellant submits that the three statutes can
and should be read in pari materia and relies espe
cially on what was stated by Lord Mansfield in Rex v.
Loxdale (1758), 1 Burr. 445 (K.B.), at page 447 [97
E.R. 394, at page 395]:
Where there are different statutes in pari materia though
made at different times, or even expired, and not referring to
each other, they shall be taken and construed together, as one
system, and as explanatory of each other.
In the view I have of the case before us, I do not find
it necessary to deal with the merits of this submis
sion.
The real issue is whether the learned Judge was
right in the construction he placed upon the provi
sions of the Territorial Lands Act and the Yukon
Quartz Mining Act with which he dealt in the passage
I have just recited. It seems to me that two separate
questions are here raised for consideration. The first
is whether the provisions of subsection 3(3) of the
Territorial Lands Act limit the operation of the Yukon
Quartz Mining Act in the manner the learned Judge
thought. It was significant to him that subsection
13(1) of the Yukon Quartz Mining Act does not pro
vide the Governor in Council with express power by
regulation to prohibit entry upon land for the purpose
of locating a claim, as does section 93 of the Yukon
Placer Mining Act, and that subsection 17(2) of this
latter Act is expressly "tied in to the Territo Hal Lands
Act" and that "[t]he Yukon Quartz Mining Act is not
so connected". In my respectful opinion, the absence
of such an express power in subsection 13(1) is of no
moment in view of the very wording of subsection
3(3) of the Territorial Lands Act that: "Nothing in
this Act shall be construed as limiting the operation
of the Yukon Quartz Mining Act. ... " [Emphasis
added.] It seems to me that the appellants and the
intervenors are correct in their submission that, if the
limitation contained in order in council P.C. 1986-
2764 is, indeed, of a kind that is contemplated by
subsection 13(1) of the Yukon Quartz Mining Act, it is
that Act and not the Territorial Lands Act which
imposes the limitation. Accordingly, the fact that the
Yukon Quartz Mining Act is, to use the Motion
Judge's phrase, not "tied in" with the Territorial
Lands Act would be of no significance in the circum
stances.
The critical question, in my view, is the meaning
to be attributed to the words at the end of subsection
13(1) of the Yukon Quartz Mining Act, viz.
13. (1) ... and also Indian reserves, national parks and
defence, quarantine, or other like reservations made by the
Government of Canada, except as provided by section 14.
[Emphasis added.]
and, particularly the words which I have underlined. I
describe the question in this way because it seems to
me that if these words are found to evince an inten
tion by Parliament to create an exception by a gov
ernment order of the kind contained in order in coun
cil P.C. 1986-2764, there would be no need for
subsection 13(1) of the Yukon Quartz Mining Act to
have itself authorized the adoption of that sort of
order.
It is difficult to understand exactly what Parliament
intended by the words "or other like reservations" in
subsection 13(1). However, it seems to me that some
light on the problem is shed by other excepting lan
guage appearing earlier in that subsection. The use of
the words "occupied" and "situated" and the phrases
"actually under cultivation", "lawfully occupied" and
"land valuable for water-power purposes" suggest
that the lands are in immediate use or occupation or
are for a future use. Also, the descriptions "Indian
reserves" and "national parks" indicate an existing
use. Those of "defence" and "quarantine" are not
necessarily to be so restricted, especially as they are
separated by the conjunctive "and" from the first two
categories. The words "or other like reservations"
thus signify that the lands which may be reserved are
required by the Government of Canada for a purpose
that involves either a present or future use rather than
a present use only.
It now remains necessary to ascertain the nature of
a reservation intended by the description "or other
like reservations". Obviously, it need not be the
"same" or "identical" to those which are enumerated
i.e. "Indian reserves, national parks and defence,
quarantine", for neither of those words was employed
by Parliament. The word "like" indicates that the res
ervation should be similar to or comparable with one
or more of those expressly mentioned in that it pos
sesses the common characteristic of those reserva
tions. This common characteristic is that the lands are
required by the Government of Canada for a broadly
stated public purpose. Only a reservation of that kind
may fall within the description "other like reserva
tions", in my opinion.
I am of the view that the reservation made in order
in council P.C. 1986-2764 falls within the language
of subsection 13(1) of the Yukon Quartz Mining Act
in that the lands reserved are for a broad public pur
pose, i.e. "to facilitate the settlement of native land
claims". Also, although the reservation is not as an
"Indian reserve", the stated purpose is similar in that
the lands reserved will be for Indians in the event
they should become part of a final settlement of
existing land claims.
I would allow the appeal and set aside the order of
the Trial Division of February 12, 1990, with costs
both here and in the Trial Division.
HEALD J.A.: I agree.
HUGESSEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.