Case information

Natural resources — Mines and minerals — Administrative law — Appeal — Standard of review —Ownership to mineral waste material contested between mine operator who held a surface lease under the Land Act, R.S.B.C. 1996, c. 245, and holder of the mineral lease under the Mineral Tenure Act, R.S.B.C. 1996, c. 292 — Court of Appeal concluding it was a palpable error to find mine operator relinquished or abandoned its ownership of waste material — Whether ownership of waste material is a pre-requisite to fulfillment of environmental management obligations in respect of that waste material — Whether principles of fixtures law apply to disputes about ownership of mining waste disposed of on land — What are the circumstances in which a second level appellate court conducting a statutory appeal of an administrative decision can disturb findings of fact or mixed fact and law made by the administrative decision maker? — Whether the proper role of a second-level appeal court on a statutory appeal from an administrative decision is that set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, or that set out in Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729.

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A mine in British Columbia (“BC”) produced ore until its closure in 2008. It also produced waste rock and tailings (“waste material”) which was deposited into a lake. The respondent, Skeena Resources Ltd. (“Skeena”), was the last operator of the mine. It had a lease with the province of BC for the exclusive use of the land including the lake, for the purpose of disposing of the waste material. In 2021, it carried out some drilling of the waste material and publicly reported that it contained gold and silver in concentrations that may make their extraction profitable. In 2017, the applicant, Richard Mill (“Mr. Mill”) had become the recorded holder of a mineral claim to the area including the lake pursuant to the Mineral Tenure Act, R.S.B.C. 1996, c. 292. The other applicant, Orogenic Gold Corp., held a beneficial interest in Mr. Mill’s mineral title. Having learned of the results of Skeena’s drilling, Mr. Mill applied to the Chief Gold Commissioner of BC (“commissioner”) for an order that his mineral claim included the waste material deposited into the lake. The commissioner found that Skeena had relinquished ownership to the waste material that was disposed of in the lake. He ruled that the right to the waste material was held by Mr. Mill. The Supreme Court of BC dismissed Skeena’s appeal, finding the commissioner made no palpable or overriding error. Skeena successfully sought leave to appeal to the Court of Appeal for BC (“BCCA”). The BCCA concluded the commissioner erred in a palpable and overriding way in finding Skeena had relinquished or abandoned its ownership of the waste material. It allowed Skeena’s appeal.