Berger Legal Opinion: No Obligation to Compensate for Peel Mining Claims

Whitehorse – Today CPAWS Yukon and the Yukon Conservation Society announced the conclusions reached in a legal opinion by Thomas R. Berger, O.C., Q.C. that states that Yukon Government would not be legally obligated to provide compensation for existing mining claims in the Peel watershed if the Peel Planning Commission’s Final Recommended Plan were to be implemented.
“Once again, Yukon Government is saying in the legislature that if the Final Recommended Plan for the Peel Watershed was implemented the taxpayer would be on the hook to pay compensation to mining companies with existing claims in the watershed,” said YCS Executive Director Karen Baltgailis. “Mr. Berger’s thirty-three page, carefully reasoned and researched legal opinion shows that this simply isn’t true.”
The executive summary to Berger’s opinion states:

We have considered whether, if the Final Recommended Plan (FRP) of the Peel Commission is implemented, the Government of Yukon (YG) would be obliged to compensate owners of mineral claims or other property interest 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 … 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.

Berger also points out 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 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 … It could be argued this would be the outcome under the FRP, since there would be no access except by air.

Berger emphasizes that both conditions must be met for there to be de facto expropriation. Since there would be no acquisition of beneficial interest by Yukon government in the mineral claims, Government of Yukon would have no obligation to pay compensation.

“It is perplexing that Yukon Government seems to be promising compensation, or inviting law suits, in cases where protected areas are created under Yukon land claims agreements,” said CPAWS Yukon Executive Director Gill Cracknell. “Worse yet, now they are inviting companies to stake claims despite the uncertainty of a legal case that could take years hanging over the Peel watershed.”

“Most of the claims in the Peel were staked after the land use planning process began,” added Baltgailis. “Those companies should have been well aware that protected areas could be zoned in the area. Is Yukon Government trying to encourage companies that may well have staked claims in the hopes of receiving compensation, to sue?” 



Gill Cracknell
Executive Director

Karen Baltgailis
Executive Director
Yukon Conservation Society