where there is a violation of the Mining Act or regulations.
Finding no violation of the Act or regulations what is to be done?
The simple method would be to compensate Platinex for its reasonably
incurred expenditures on the "property". But wouldn't that be rewarding
the company for bad behaviour. That might not in the public interest.
Allowing for parliamentary supremacy, and lacking a common law right to
compensation maybe there is a regulatory or legislative way to make
Platinex go away.
Let's reverse engineer the Make Platinex Go Away Act.
The act or whatever regulatory mechanism is used to make Platinex go
away has to have 3 elements. Get these elements wrong and you are in a
so-called Tener situation(after the BC case dealing with a mining claim
in a Park) and Platinex can go to court to seek compensation and win.
1. Create a situation that makes it difficult but not impossible to use
the land. The rights associated with the property would technically
exist but be very, very difficult to practically act on.We don't want
the company to argue that we have taken away their rights. As an aside,
they effectively took away their own rights when they launched the $10
billion lawsuit vs. KI.
2.Do not transfer any of the rights to the government authority. We
want to defend against the argument that government( or the public)
benefits from the loss of rights and thus compensation is due to the
company.
For example, a Park looks like a public good. If Ontario makes the
claims into a Park then they are transferring the rights to a public
authority and government will have to pay compensation for making that
public good out of the company "rights'.
3.It must be clear from the legislation or any other authority used to
create the scenario that the explicit intent was to deny compensation.
Parliamentary supremacy allows for no compensation if the intent is
clear and plain.
Reading over my 3 conditions I think that its safe to say that this
will never happen.
On second thought why not have a pause that lasts so long that the
company vanishes. I thought I read that they would go bankrupt in at
least 2 of the KI decisions. Canada has been waiting 7 years to make a
decision on the KI land claim. Good enough for Canada, good enough for
KI. Ontario declares a 7 year pause. During the pause the claims remain
in good standing. If Ontario is lucky the company vanishes. After all
didn't Platinex rise out of the ashes of a bankrupt company.
And then this story could end not with bang but with a whimper.
