The Yukon Supreme Court heard a dispute this week that's pitted miners against developers in Whitehorse — and the court's decision will be sure to leave at least one party dissatisfied, and out of some money.
"It's unfortunate you both cannot win," said Senior Justice Ron Veale in court on Friday.
Raven's Ridge Developments is already selling lots for a residential neighbourhood in Whitehorse, called Raven's Ridge Phase Two. However, a mining company — H. Coyne and Sons Limited — says it has the rights to mine the area for copper.
Both have a legal claim they say gives them priority — the developers own the land, while the mining company owns the sub-surface mineral rights. And both have investments they stand to lose if the court's decision is not in their favour.
"Either way there's going to be some wasted expenditure here," said attorney Blair Shaw, who represents Coyne and Sons.
The mining company says it has already spent $360,000 on exploration in the area. It's asking the Supreme Court to allow the creation of a mine in what would otherwise be a quiet residential neighbourhood.
The development company says that would be a severe disturbance and would threaten the value of the lots in the neighbourhood.
Mineral claims first issued more than a century ago
The case is unusual because mineral claims are no longer granted within Whitehorse city limits.
Coyne and Sons' claims date to the early 1900s, when they were initially issued to the Whitehorse Copper Company, by the Crown. At the time, claims issued did not have an expiration date.
The claims (called Tamarack and Carlyle, #49 and #50) have since been sold from owner to owner. The area that's now Raven's Ridge was initially outside city limits, in a region called the copper belt.
Coyne and Sons acquired the two claims in 1998 as part of a package worth $100,000.
The company has long argued it's being unfairly locked out and asked to walk away form a significant investment.
In a statement read to the court this week by his attorney, mining entrepreneur James Coyne said the city unfairly encroached on the claim over the years, despite repeated notices.
"I wasn't contemplating this could be used for residential housing. Especially since this region is called the 'Whitehorse copper belt,'" read the statement.
The land was previously owned by the Hudson's Bay Company and ATCO Electric Yukon, which had not objected to the mining company's presence.
However, the land was sold to developers in 2009 and re-zoned from parks and recreation to residential in 2012.
It has since been entirely divided into residential lots.
City offers no compensation
The City of Whitehorse has argued against the miners.
This week, the city's attorney Dan Bennett argued the city has authority over development within city limits. He argued that a mine would be prohibited by zoning bylaws and the claims are therefore worthless.
The city has offered no compensation to the mining company.
However, there is a legal question as to whether Crown mineral grants supercede the city's bylaws and zoning, and whether owning mineral rights implies a right of access.
At one point this week, Justice Veale could not contain his laughter during his questioning of the development company's attorney. He raised his hands above his head, asking "if the miners don't have access to their claim, then what did they buy for $100,000? A piece of paper with no rights to do anything?"
Attorney Murray Leitch, representing Raven's Ridge Developments, argued that was indeed the case.
He said the mining company never obtained "expressed right of access" when buying its claims.
He also argued the company had waited too long before moving forward with plans to mine.
"The party obtained the rights in 1998. Well, here we are in 2017, quite a few years later. It has to be done within a certain period of time. If you sit on it, I think a limitation applies," he said.
Raven's Ridge has already built a road in the area and many homes have already been built on lots sold as part of Raven's Ridge Phase One.
The development company argued in court that homeowners in the neighbourhood also have rights, which include a right "not to have the surface destroyed", and the right to peace and quiet.
All parties declined to comment after the hearing wrapped up on Friday, after three days of testimony.
Justice Veale reserved his decision.